FTR Now

Focus on Health & Safety

· 10 min read By: Carey O’Connor, Grant R. Nuttall

FTR Now

Focus on Health & Safety

Date: March 3, 2020

In this FTR Now, which focuses on health and safety issues, we discuss two recent cases from the Ontario Court of Justice which suggest that there should be a shift in the approach to sentencing corporations convicted under the Occupational Health and Safety Act (OHSA). We also look at the recent decision of the Supreme Court of Canada which held that a federal employer was only obligated to do workplace inspections for those locations over which it has physical control. Finally, we consider the Ontario health and safety blitzes, and what to do when an inspector comes calling.

In This Issue

Fines Not Cutting It – Courts Question Sufficiency of “Fines-Only” Sentencing Options for Corporations Convicted under OHSA

By Carey O’Connor

Two recent Ontario Court of Justice (ONCJ) decisions reflect upon the inadequacies of imposing fines on corporate defendants charged with offences under the OHSA. These decisions question the deterrent effect of monetary fines and advocate for the imposition of innovative sentences with specific action items for the convicted corporation.

Sentencing of Corporations

Most of the time in OHSA prosecutions, the accused is a corporation. The challenges inherent in sentencing a corporation are not new. The seminal case on sentencing for violations of OHSA is a 1982 case, R. v. Cotton Felts. It acknowledges that while a corporation cannot be imprisoned, the law must regulate, and occasionally punish, corporate behaviour. 

Monetary Deterrence

Sentencing case law dictates that fines must be large enough to punish and deter unlawful behavior – and to be more than a mere licence fee for illegal activity.

In the recent ONCJ cases, the Courts questioned whether the imposition of fines was, indeed, having the deterrent effect intended.

As a result, there has been a shift in the sentencing paradigm: the first Court reluctantly accepted the joint submissions by the parties which recommended a fine, but questioned whether more was needed; the second Court ordered specific actions be taken by the convicted party, in addition to imposing a fine.

LaFarge – Embedded Auditor Recommended

In Ontario (Ministry of Labour) v. Lafarge Canada Inc., Justice of the Peace Cuthbertson accepted the joint submission of the parties regarding the fine to be imposed. However, he wrote at length about his reluctance to accept the joint submission as he would have preferred to impose an embedded auditor as part of the sentence.

The concept of an embedded auditor is fairly new. In lieu of, or potentially in addition to, a fine, the court would require a corporation to have an embedded auditor who reports to the government on health and safety matters, but whose professional expertise is paid for by the corporation. Embedded auditors are described in the Lafarge case and in texts on sentencing as analogous to house arrest for corporations.

In addition, the Lafarge decision is notable because, following a review of the case law, Justice of the Peace Cuthbertson advocated in obiter for the imposition of higher fines for repeat offenders. He concluded:

[50]   Some 37 years after […] Cotton Felts a maximum fine has not been imposed, no matter how many deaths have occurred in a corporation’s workplace. In my view, this has not achieved the deterrence objectives of the OHSA.

The maximum fine for a corporation convicted under the OHSA is $1.5 million per charge.

Vixman – Specific Actions Required  

In Ontario (Ministry of Labour) v. Vixman Construction Ltd., the ONCJ found that a sentence jointly recommended by the Crown and corporate defendant of only a fine would not maintain “public confidence in the administration of justice.”

Justice of the Peace Fantino commented favourably on the innovative sentencing options available in other Canadian provinces, which would have allowed him to divert a portion of the amount of penalty ordinarily payable as a fine to be paid as a charitable donation, in memory of the deceased, to a program aimed at improving safety at construction sites. Such a sentence would address one of the criticisms of fines – that they are paid to the government generally, and are not earmarked for the improvement of health and safety programs. In his decision, he suggested that lawmakers should consider reform.

With respect to this case, in addition to the fine, the Justice also imposed an 18-month probation order on the corporation, which set out numerous conditions, including:

  • publishing an article in Health and Safety Magazine, dedicated to the deceased worker, which publicly acknowledges the offence and emphasizes specified topics (e.g. enhanced fall protection)
  • sharing the article with the Ministry of Labour (MOL) for dissemination
  • producing a video, dedicated to the deceased worker, about fall arrest procedures, which may be featured on the MOL website.

When Will Innovative Sentencing Principles Apply?

In Vixman the ONCJ imposed additional and specific requirements during the probation period. This was done even though the parties made a joint submission regarding the imposition of a fine only. 

In Lafarge the ONCJ reluctantly accepted the joint submission of the parties, despite its preference to impose an embedded auditor.

Much of the difference may be explained by the fact that the LaFarge case involved a guilty plea, whereas sentencing in the Vixman case occurred following a trial and conviction.

The threshold for a Justice of the Peace to reject a joint submission on sentencing is materially higher when the accused has entered into a guilty plea. Since the sentencing in Vixman occurred after a trial and conviction, the Court in that case had significantly more latitude to impose innovative sentencing conditions.

Conclusion

A shift appears to be underway with respect to sentencing of OHSA violations, and the potential that a corporation may be required to do specific things if tried and convicted may increase the appeal of entering into a guilty plea for some accused corporations.

The ONCJ’s willingness to order specific action may further provide increased deterrence where monetary fines fall short.

 

 

Supreme Court of Canada: Work Place Safety Inspections Under Canada Labour Code Only Apply to Work Place Over Which Employer Has Control

By Grant R. Nuttall

The Supreme Court of Canada recently issued a decision which is welcome news for federally-regulated employers that may require employees to work outside of the employer’s physical location.

In Canada Post v. Canadian Union of Postal Workers, the Court held that an employer’s work place inspection obligations under the Canada Labour Code (Code) only extended to that part of the work place over which it has physical control, and not to locations beyond its control where its employees may be engaged in work.

The union’s initial complaint claimed that the employer had failed to ensure the joint health and safety committee complied with the annual inspection obligations set out in s. 125(1) (z.12) of the Code. It argued that the employer’s work place inspection obligations for letter carriers involved not just the mail depot, but letter carrier routes and locations where mail is delivered (Points of Call). The letter carrier routes span over 72 million linear kilometres and involve 8.7 million Points of Call.

Initially, the health and safety officer found the employer failed to comply with its safety obligations. However, the Appeals Officer rescinded the contravention, determining that the obligation only applied to that part of the work place over which the employer has control.

After making its way to the Federal Court and Federal Court of Appeal, the Supreme Court of Canada ultimately restored the Appeals Officer’s decision, finding the Appeal Officer’s decision was reasonable in accordance with its newly articulated standard of review analysis.

The Court referred to the Appeal Officer’s reasons, in which he:  

  • found there is a distinction in the legislation between situations where work places are controlled by the employer and those situations where they are not,
  • noted that in order to fulfil its obligation, control over the work place is necessary because the purpose of the inspection obligation is to permit the identification of hazards and the opportunity to fix them or have them fixed, and
  • considered the practical implication and agreed it would be impractical for employers to inspect structures it has no right to alter.

The decision provides clear direction to federal employers and their joint health and safety committees regarding the extent and limits of their work place inspection obligations. However, the decision is based on the specific language of the Code, and it is important to remember that the language on work place inspection obligations varies depending upon the jurisdiction.

 

 

Four Things Employers Should Know About Provincial Health and Safety Blitzes

By Grant R. Nuttall

Each year the Ministry of Labour, Training and Skills Development schedules compliance initiatives in specific sectors to protect workers’ rights under the Occupational Health and Safety Act (OHSA) and enhance employers’ awareness of their responsibilities.

While the focus of the initiatives are announced ahead of time, individual workplaces are not notified in advance of an inspection. Would your workplace be ready for an inspector’s visit?

  1. What is an inspection blitz?

During an inspection blitz, occupational health and safety inspectors conduct field visits to check compliance with the OHSA and its regulations. Blitzes focus on specific issues and/or workplaces. For example, there is currently a blitz which focuses on personal protective equipment at construction sites and roadwork projects (see our Human Resources Legislative Update of February 5, 2020).

  1. What is the purpose of an inspection blitz?

The Ministry’s initiatives (education, outreach, awareness, and inspections) are intended to raise awareness of hazards and increase compliance with the OHSA and its regulations.

  1. How do you prepare for an inspection blitz?
  • identity how the focus of the blitz is engaged in your workplace
  • correct any potential OHSA violations
  • ensure workers have the proper equipment and have been trained on the hazard that is the focus of the blitz (with training records available)
  • appoint one person in advance to be the inspector’s point of contact. Communicate this person’s name to receptionists or other front-line employees so they know who to contact in the event of an inspection.
  1. How do you handle an inspector’s visit during a blitz?

  • designate an individual to meet the inspector (and a back-up in case that person is away)
  • verify the Inspector’s identification – note their name and get a copy of their business card
  • determine the purpose of the visit.
  • manage the visit:
    • accompany the inspector
    • produce documents as requested (retain originals or make a copy if the inspector requires the original).
    • if the inspector requests documents which are privileged or you doubt you should produce, indicate you’d like to speak to legal counsel. If the inspector insists, provide the documents in a sealed envelope marked “Confidential” or “Privileged”.
  • manage interviews:
    • answer questions honestly but do not speculate
    • attend interviews, as permitted
    • if an inspector “cautions” an interviewee, immediately request that the interview be stopped in order to confer with legal counsel
    • interviewees have no obligation to read over or sign the inspector’s notes
  • be aware of “shifting purposes” – if the purpose shifts, the inspector’s powers may change too.

Hopefully with these tips, you will not only be prepared for an inspection blitz, you will also take steps to ensure your workers are working in a healthy and safe manner.

If you require further information, please contact Carey O’Connor at 416.864.7020, Grant Nuttall at 416.864.7262, Nadine Zacks at 416.864.7484, or your regular Hicks Morley lawyer.

The articles in this client update provide general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©