There are lessons and warnings for HR leaders in recent court decisions resulting in jail-time for the accused supervisors.
A sentence of imprisonment for convictions under the Occupational Health and Safety Act (“OHSA”) is rare. However, two recent cases may signal that the Courts are becoming more comfortable imposing jail terms. The maximum length that can be imposed under the OHSA for imprisonment is one year.
In R v Roofing Medics Ltd., a decision released on November 21, 2013, the owner of a roofing company was sentenced to 15 days imprisonment following the death of an employee. The worker fell from a ladder and landed on a fence while working on a residential roofing project. The owner initially advised the Ministry of Labour and the police that the deceased had been assisting as a friend to install roofing at the owner’s residence at the time of his death. One week after the incident, the owner revealed the truth regarding the tragic workplace accident.
The owner plead guilty for failing as a supervisor to ensure that a worker works with the protective devices required by law and to knowingly furnishing an inspector with false information. The Court imposed a 10-day jail term for the fall protection charge and a 5 day jail term for lying to the Ministry of Labour regarding the incident.
Given the egregious facts, the imposition of a jail term is not surprising. However, of note are the Court’s comments regarding the use of jail terms in future cases involving roofing companies. Justice Nelson noted that the jail term was necessary to deter others in the roofing industry from continuing to ignore fall protection requirements. Further, the Court stated “if workers continue to fall off roofs in contravention of fall arrest regulations, supervisors can expect that jail sentences will be longer and may well become the norm”.
In R v JR Contracting Property Services et al., a decision released on March 6, 2014, a supervisor was found guilty of failing to provide adequate fall protection equipment to a worker and sentenced to 45 days imprisonment. In addition, the company was fined $75,000. The worker suffered paralysis after falling while working on a residential roof and testified that he had not been trained in the use of, nor had he been supplied with, any fall protection equipment.
Justice Hendriks applied the Regulatory Modernization Act in concluding that a jail term was an appropriate sentence. Section 15 of the Regulatory Modernization Act permits a Court to consider a defendant’s record of prior provincial offences in determining an appropriate sentence. Generally, a defendant’s record regarding past violations of the OHSA will be a factor in sentencing. However, the Regulatory Modernization Act broadens the scope to allow the Court to consider the prior offences under all provincial regulatory statutes.
The supervisor at issue in R v JR Contracting Property Services et al. had multiple convictions under the Environmental Protection Act with prior sentences including fines and intermittent jail terms. The bulk of the fines remained unpaid at the time of sentencing. In applying section 15 of the Regulatory Modernization Act, Justice Hendriks concluded that the outstanding fines showed a “serious disregard for public welfare statutes, and the consequences of her actions”.
It is yet to be seen whether these are isolated cases or whether jail terms will become more common in cases involving serious violations of the OHSA. Regardless, they serve as a reminder that imprisonment is a viable form of sentencing. Further, companies must be cognizant of the fact that their entire regulatory conviction history may be a factor in sentencing as a result of the Regulatory Modernization Act. Often parties plead guilty to a regulatory charge as the cost of funding a defence is greater then the penalty proposed by the prosecution. The ramifications of having multiple regulatory convictions should be a consideration when deciding whether to plead guilty rather than defending provincial regulatory charges.
- Evan Campbell
For more information and advice contact a Miller Thomson lawyer at: [email protected].