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An Ontario court has recently ordered two corporate directors to each serve 25 days in jail after they pleaded guilty to safety violations that led to the death of a worker.
New Mex Canada Inc., an importer and retailer of furniture and accessories, and directors Baldev Purba and Rajinder Saini, were charged under the Occupational Health and Safety Act (OHSA) after a warehouse worker died while using a combination forklift/operator-up platform. The lift had been modified to have an additional platform without a guardrail, and the worker was not wearing fall protection at the time of the accident. On January 18, 2013, the worker was found on the warehouse floor and was pronounced dead. The cause of death was determined as blunt force trauma to the head.
The two directors pleaded guilty to charges relating to the provision of fall protection equipment, and were each ordered to serve 25 days in jail (to be served intermittently on weekends) and to take a health and safety course within 60 days. In addition, the employer was fined $250,000 (plus the 25% victim fine surcharge) for failing to provide information, instruction and supervision to the worker on fall protection and/or working from a height.
Significance of Case
Under the OHSA, individuals can be fined up to $25,000 and/or imprisoned for up to one year. Although the courts’ discretion to imprison directors for violating the OHSA is not new, this case is noteworthy because, historically, jail time has been infrequently imposed. An increase of custodial sentences in recent years appears to signal that the Ministry of Labour has become more willing to take more aggressive positions on individual liability where violations are particularly egregious and where greater deterrence is necessary.
For example, in the 2014 case of R. v. J.R. Contracting Property Services, a supervisor was sentenced to 45 days in jail for failing to ensure the safety of a worker who fell from a roof. The court in J.R. Contracting accepted evidence of the supervisor’s prior convictions, unpaid fines and jail terms for environmental offences as aggravating factors justifying a more severe penalty.
In the 2013 case of R. v. Blondin, a director was sentenced to 90 days in jail for failing to pay employees. Although Blondin was not a health and safety case, the case was prosecuted by the Ministry of Labour.
In the 2013 case of R. v. Roofing Medics Ltd., a supervisor was sentenced to 15 days in jail for failing to ensure the use of fall protection equipment and knowingly providing false information to a Ministry of Labour Inspector. The Crown tendered evidence in its sentencing submissions demonstrating a general problem with fall protection violations. 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”. The jail term in Roofing Medics therefore stands as a warning to violators of fall protection laws, particularly in the roofing industry.
J.R. Contracting and Roofing Medics may also signal a growing practice by the Ministry of Labour to tender more extensive evidence of potentially aggravating factors in an effort to seek more severe penalties – such as evidence of prior regulatory convictions under provincial statutes (for example, those administered by the Ministry of Transportation, Ministry of Environment, and Ministry of Health and Long-Term Care), unpaid fines, and the general frequency of certain violations. Employers, supervisors and directors should therefore carefully consider both individual and corporate records when considering whether or not to contest regulatory charges.
This recent decision in New Mex Canada Inc. serves as a grim reminder that health and safety convictions can result in very serious consequences to companies and their representatives. Serious efforts must be made to both prevent violations, and appropriately respond to orders and charges if they arise.
About the Author: Toronto Employment Lawyer Phanath Im practices in all areas of employment law. She is a former Ministry of Labour prosecutor with special expertise in occupational health and safety (OHS) matters. Phanath’s OHS practice includes defending workplace accident-related regulatory charges, accident response, reporting and investigation, and managing OHS inspections.