Corporate Directors Jailed After Worker Falls to His Death

Any employer who has not yet received the memo, should pay close attention to some recent decisions of the Ontario courts. In cases where employees are seriously injured or killed following a workplace accident, the courts are increasingly willing to impose jail sentences in addition to substantial fines.

In R. v. New Mex Canada Inc., a decision of the Provincial Offences Court (summarized here), the employee was using an "order-picker" (a combination forklift/operator-up platform) which had been modified by tack-welding an additional platform onto the forks of the device.  There was no guarding surrounding the added platform, and the employee was not wearing fall-arrest protection.  The employee fell from the machine and died of blunt-force trauma to the head.  The Ministry of Labour found a number of violations of the Occupational Health and Safety Act (the "OHSA"), including the lack of fall-arrest equipment and the failure to provide health and safety training to employees.

The Ministry prosecuted the company and two of its directors.  The corporation pleaded guilty, and Justice of the Peace C. Jill Fletcher imposed a fine of $250,000 (plus the 25% victim surcharge) for failing to provide information and instruction to a worker about fall-arrest protection when the worker is working at heights.  The two directors also pleaded guilty, and were each given 25 days in jail (to be served on weekends) for failing to ensure that the corporation complied with its OHSA obligations.  In addition, they were ordered to take a health and safety training course within the next 60 days.

Sadly, this is not the first time that the Provincial Court has attempted to send this message.  It's troubling that an employer today would still not be providing the rudiments of workplace health and safety.  Still, the decision stands as one of many reminders to employers (and their corporate directors, supervisors, etc.) about the risks inherent in failing to take health and safety obligations seriously.  To avoid this outcome, employers must:

• Ensure that they have a health & safety policy, and procedures that explain to employees how to perform their duties safely.  Review policies on a regular basis to ensure they remain relevant and up-to-date;
• Ensure that corporate directors are familiar with the employer obligations under the OHSA and Regulations;
• Ensure that employees receive health and safety training (including, but not limited to, the "basic awareness training" mandated by Regulation 297/13), and provide regular refreshers;
• Be particularly diligent in training and supervising young workers and employees who are new to the workplace, as they are most vulnerable to hazards;
• Ensure that supervisors are "competent", by providing enhanced training designed to identify and alleviate workplace hazards.  Also make sure that supervisors are aware of and consistently enforcing workplace rules and policies regarding health and safety; 
• Conduct regular inspections of the workplace to identify any hazards, and be aware of any attempts by employees to circumvent safety measures.

Employers who make health and safety a 'front-of-mind' consideration are much less likely to end up on the wrong side of the Ministry of Labour or the courts.  And their directors probably won't end up in jail.

Do you have questions about your responsibilities under the OHSA and Regulations?  Need guidance in responding to a critical incident?  Contact Lance Ceaser for expert advice.

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.

Recent Cases Highlight Individuals’ Liability for OHSA Violations

Three recent decisions of the Ontario Court of Justice show just how imperative it is for employers and workers to take their responsibilities under the Occupational Health and Safety Act (the “OHSA”) seriously.

Following a lengthy trial, that started in 2011 and was concluded in 2013, Justice of the Peace Mary A. Ross Hendricks passed down her sentence in Ontario (Ministry of Labour) v. J.R. Contracting Property Services in March this year.  In October 2008, a worker employed by J.R. Contracting was on the roof of a residential garage tossing loose shingles into a trash bin when he rolled off, landing on a concrete walkway.  As a result of his fall, he injured his spinal cord, leaving him permanently paralyzed from the waist down.  The Ministry of Labour investigated and charged the company, Teisha Lootawan (as a supervisor), and Andrew J. Haniff (for obstructing the investigation). 

At trial, the evidence disclosed that the injured worker was employed by J.R. Contracting and that he was neither provided with fall equipment nor trained in its use, although he was sent to perform work on a roof that was over three (3) metres off the ground.  The fact that he and his co-worker had drank as many as three beers before starting the job did not reduce the company’s culpability for failing to take all reasonable precautions in the circumstances.  The Justice of the Peace also concluded that Ms. Lootawan had been responsible for directing the two workers to the job location (a residential property in Toronto), and told them that they would be working on the roof, but did not ensure that they had and used fall protection.  In the course of the Officer’s investigation, it was found that Mr. Haniff had refused to answer any questions with respect to what he had done after receiving a call from the homeowner, although this information was relevant to the accident investigation.

The company received a $75,000 fine, which was in the mid-range for an accident of this nature, for failing to take all reasonable precautions to protect the safety of a worker.  Mr. Haniff was fined $2,000 for his refusal to cooperate with the Officer’s investigation. However, most surprisingly, the Justice of the Peace ordered that Ms. Lootawan serve 45 days in custody, to be served continuously.  In large part, this sentence reflected the fact that Ms. Lootawan had prior convictions under the Provincial Offences Act (for violation of the Environmental Protection Act), had been sentenced to jail on an intermittent basis in the past, and had not paid over $50,000 in fines that were previously imposed.  The JP was persuaded that neither fines nor an intermittent custodial sentence would be likely to deter Ms. Lootawan from committing further infractions.

In another case recently reported by the Ministry of Labour, a JP ordered fines against both a Mississauga construction company and one of its Directors.  In R. v. Starland Contracting Ltd. (unreported).  During one visit to the site (where the company was working on the construction of a self-service car wash), an inspector from the Ministry of Labour had observed a worker on a roof without a hard hat or fall protection.  The same inspector paid a follow-up visit to the site a couple of months later, where he encountered one of the Directors of the company (Murad Ebeid) acting as a supervisor on site.  When the inspector approached him, Mr. Ebeid swore at the inspector, told him to leave the site, and made threatening gestures and comments towards the inspector. When asked, Mr. Ebeid also refused to show identification to the inspector.  On a visit the next day, the company could not produce a Notice of Project or Form 1000, and then failed to produce the documentation by the date ordered by the inspector.

For its violations of the Act, the company was fined $29,500 (for failing to ensure a worker was using fall protection and wearing a hard hat, and for failing to comply with an order of the inspector).  Mr. Ebeid was also fined $8,500 personally for obstructing the inspector and for failing to show I.D. when requested.

These cases highlight the risks for supervisors who are not compliant with their obligations under the Act.  However, another recent reported case suggests that workers are also not immune from prosecution.  On November 13, 2014, Justice of the Peace Mary A. Ross Hendriks ordered a worker to pay a fine of $1,500 for his violation of the OHSA.  The worker, Christopher Schwaemmie, was working as a hoist operator on a Toronto job site when he was observed jumping from a hoist tower to a nearby rooftop, approximately 50 feet above the ground.  Mr. Schwaemmie was wearing a fall protection harness and lanyard, but was not tied off.  The worker pled guilty to failing to be adequately protected by a method of fall protection while exposed to a fall of more than three metres.

These decisions demonstrate that employers, supervisors and employees all need to be more vigilant in ensuring work is performed safely, particularly when work at heights is involved. They also demonstrate the willingness of the Ministry of Labour to pursue charges against individuals (not just large, corporate employers) where the Act is not being followed. 

If you have questions about these decisions, your obligations under the OHSA, or are facing potential prosecution, please do not hesitate to contact Lance Ceaser.