Monday, 21 April 2014

Doing the “right thing”: Should an employer receive credit for correcting health & safety hazards after an accident? The Ontario Court of Appeal says “No”

The Ontario Court of Appeal recently ruled on whether corrective action taken by an employer after an accident (and an Order from a Ministry of Labour (“MOL”) Inspector) should mitigate the sentence the employer receives for breach of the Occupational Health and Safety Act (the “OHSA”).  In Ontario (Ministry of Labour) v. Flex-N-Gate Canada Company, an employee was injured after a bundle of metal sheets slipped off of a fork lift and struck the worker, causing serious injuries to her foot.  A MOL Inspector investigated the accident, and issued two orders to Flex-N-Gate.  The company complied with both orders immediately.  At trial, the Justice of the Peace found that the employer was guilty of offences under the OHSA, and imposed fines of $25,000 each on two counts, for a total fine of $50,000.  The total fine was well below the $500,000 maximum that an employer could face for each offence.
The employer appealed the decision to the Ontario Court of Justice, where the judge upheld the fines, but made them “concurrent”.  In effect, the total fine was reduced to $25,000.  Most significant to the judge’s ruling was her determination that Flex-N-Gate should receive credit for taking “ameliorating action” immediately following the issuance of the MOL orders, as a “reward” for doing “the right thing”.  The MOL appealed the decision.
At paragraph 19 of its decision, the Court of Appeal upheld the Ministry’s position on whether an employer should be credited for taking action after orders have been issued, stating:
… The court should not have discretion to treat an employer’s post-offence compliance, though statutorily required, as a mitigating factor on sentence.  Doing so would undermine one of the most important goals of the OHSA – accident prevention – and the statute’s most important sentencing principle – deterrence.
The Court found that treating corrective action after an accident as a mitigating factor on sentencing would create a disincentive to employers from taking preventive action before an accident occurs.  The Court of Appeal cited case law under the Environmental Protection Act, and adopted the view that actions taken after an incident that breaches public welfare legislation could be seen as an aggravating factor, since it demonstrates that hazards were discernible and could have been corrected in advance.  In short, the Court concluded (at para. 30):
If, after having contravened a safety standard, an employer then acts to correct the problem, it is not “doing the right thing”; it is doing what the statute requires it to do.  It ought not to be “rewarded” for its compliance.
However, the Court did observe that corrective action that exceeds what is required by an Inspector’s order and/or steps taken in advance of an accident to prevent or reduce the risk are valid mitigating considerations.
The Court then went on to find that prior cases decided by the Court of Appeal had found that “concurrent fines” were not available to a court under the OHSA and the Provincial Offences Act.  The court must consider the totality of the fines imposed to ensure that the ‘punishment fits the crime’, but has no discretion to make the fines for two or more offences concurrent.
The decision should remind employers that identifying and mitigating health and safety risks to prevent accidents is the focus of the OHSA.  Unless an employer takes bigger steps than required by the MOL after an accident, the corrective action will not reduce the penalty to be imposed.  In fact, taking steps after an incident may signal to the MOL that the employer was aware of the hazard and not duly diligent in addressing it. 
Do you have a health and safety issue in your workplace?  Contact Lance Ceaser to discuss your questions about the Occupational Health and Safety Act or to obtain representation.

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