Although jail remains the exception rather than the rule for Occupational Health and Safety Act (OHSA) offences, prosecutors are seeking jail terms and creative sentences more frequently than in the past.
Cheryl Edwards and Jeremy Warning, partners at Mathews Dinsdale & Clark LLP, discussed new tools available for OH&S non-compliance during a presentation at Partners in Prevention. The annual health and safety conference and trade show, presented by Workplace Safety and Prevention Services, was held recently at the International Centre in Mississauga, Ont.
"It does seem that the lesser penalties are considered first, but we are seeing now much more aggressive positions taken by crown prosecutors in certain cases," Warning explained.
The idea doesn't seem to be taking off in Ontario but in other jurisdictions across the country, creative penalties are becoming more common, delegates were told.
"The trend towards sentences that are not simply fines is likely to continue to expand, but we still don't see that happening in Ontario," said Edwards, adding there is a continued and growing recognition that the public interest can be better served using creative sentences such as probation orders that keep the employer under court scrutiny.
Edwards spoke about the Christmas Eve swing stage collapse in 2009 — the case of project manager Vadim Kazenelson, who was sentenced to three-and-a-half years in jail in relation to the collapse that killed four workers and seriously injured another.
"It's the highest penalty that has been meted out by an individual, the highest jail term that has been meted out," said Edwards. "The court looked at what we often call mitigating factors and the court rejected arguments that the sentence should be mitigated because of defective manufacturing of the swing stage that was argued or the failure of workers to follow fall protection requirements."
Following a 2015 trial, Kazenelson was found guilty of four counts of criminal negligence causing death and one of criminal negligence causing bodily harm. The corporation, Metron Construction, received a $750,000 fine, the president received a $90,000 fine under the OHSA and the supplier of the scaffold also received a $350,000 fine.
According to the court decision, all workers were trained and the proper fall protection equipment was on site but only one worker was wearing it. The project manager was aware of this, inquired about it, was told not to worry and did not order the work stopped.
"In this particular case they found that his behaviour was highly culpable warranting that kind of a jail term," Edwards said, adding both the conviction and the sentence is under appeal.
She went through a few other cases in Canada in 2016 that imposed jail terms for OH&S non-compliance, though most of them were not as significant in terms of jail time. An Ontario contractor who misrepresented himself to a homeowner stating he was certified in asbestos removal and exposed his workers and the homeowners to the hazardous material received 30 days in jail and a $45,000 fine. An employer in Nova Scotia who allowed his employees to work without fall protection was given 15 days in jail. One Ontario roofing contractor failed to provide fall protection to his workers and after a worker fell and suffered an injury, directed the workers to go up onto the roof and put fall protection equipment in place in order to deceive the Ministry of Labour. He received three days in jail and a $5,000 fine.
Edwards also addressed the limitations of fines alone as a penalty and how that is changing in Canada. While Alberta companies have been placed on probation and have been receiving creative sentences over the last few years, she said the crown prosecutors approach in Ontario has been "decidedly uncreative."
"There is sometimes a fervent desire on the part of the corporation that we're representing or the individuals who are affected by an OH&S case — a contravention, a loss of life, injuries to others — to see something more done than have a corporation receive a fine and a slap on the wrist," said Edwards, adding some courts are taking steps to make changes. "There are certainly creative alternatives, particularly in Alberta for the past number of years, where the courts are really trying to make the sentencing of corporations a meaningful tool."
Companies also have the option of taking "creative" steps and using it as mitigation before or during a trial, Warning added.
Some creative approaches include making a charitable donation, funding or contributing to a health and safety course or program, having a manager or supervisor attend a health and safety course, imposing a penalty that requires repeated periodic action by the company and community service.