As offences under the Occupational Health and Safety Act garner an increasing amount of public attention, the penalties to which employers, supervisors and other workplace parties have been subject are also on the upswing.
One of the more remarkable and alarming facets to this phenomenon is the increase in the number of sentences involving imprisonment. Although still a relative rarity, more and more OHSA prosecutions involve a Crown request for imprisonment. In turn, the Courts appear to be more willing to impose incarceration on individuals who breach the Act.
Unfortunately, the caselaw dealing with when incarceration is appropriate for breaches of the OHSA is relatively sparse. Beyond one decision, R v Di Franco which is now almost a decade old, few reported cases have grappled with the subject.
However, a recent decision from the Ontario Court of Justice, sitting on appeal, helps shines much needed light on the subject.
The case of R v New Mex Canada Inc involved an accident in a warehouse in which a worker who was subject to seizures fell twelve feet and died as a result of his injuries. The employee was not protected by the requisite safeguards against falling.
The Court found that the corporation and two of its directors were aware of the worker’s vulnerability towards seizures, and had been extremely lax in enforcing health and safety norms at the warehouse.
Ultimately, the corporation and the directors pleaded guilty to two counts each, one related to the failure to ensure that the worker was properly trained, and the second the failure to ensure that the proper fall protection was implemented at the plant.
Following the guilty plea, the trial justice sentenced the corporation to a fine of $125,000.
Each of the directors was sentenced to a period of 25 days of jail. As with most sentences of this duration, this sentence was to be served on weekends.
The corporation and both directors, appealed their sentences.
The appeals court ultimately allowed the appeal of the sentences.
The majority of the Court’s focus was on whether a sentence of imprisonment was appropriate for the directors. The Court found that it was not.
The Court confirmed that a penalty for an offence under the OHSA is primarily concerned with deterrence. The sentence should deter both the actual defendant as well as the community more broadly from risking breaches of the OHSA.
The Court further confirmed that a strong fine is an appropriate and sufficient deterrent in most convictions under the OHSA. The additional sanction of incarceration, on the other hand, was appropriate primarily those cases which involved repeat offenders who required additional deterrence which could not be provided through an additional fine. The Court confirmed that incarceration should very much be the exception rather than the rule.
This coincides with prior caselaw that suggested that incarceration for breaches of the OHSA must be treated as a penalty of last resort.
The directors in New Mex Canada did not have any prior convictions under the OHSA. Although their attitude towards health and safety was lax and below the standard the Court would expect, they had shown genuine remorse after the incident. As a result, the Court found that incarceration for the two directors were inappropriate, and that a substantial fine would vindicate the goal of deterrence.
The Court therefore varied the sentences.
The fine against the corporation was reduced to $50,000.
The sentences of imprisonment for both directors were rescinded, and $15,000 fines substituted in their stead.
This case provides much needed clarity on when courts will find sentences of imprisonment appropriate. The Court will normally only consider such sentences when it considers that fines are insufficient. As a result, imprisonment will usually only be appropriate in cases where individual defendants have prior records and have not shown a willingness to correct their behaviour, or in cases with extremely egregious facts where the individual is shown to have had a state of mind closer that of recklessness or negligence, where a stronger deterrent message may be required. In such cases where an individual intentionally avoids their obligation under the OHSA, there may be more of a judicial appetite for sentences that include imprisonment.
It should be noted that it is not known if the Crown will seek to leave to the Court of Appeal to appeal this decision. If it does, that will provide an invaluable opportunity for the highest Court in the province to provide its input on the circumstances under which the prosecution of the Occupational Health and Safety Act can lead to incarceration.
