March 11, 2015
In Canada, jail sentences are common for those convicted of criminal offences. However, they have been imposed with far less frequency for regulatory offences such as under OH&S legislation. Indeed, the approach in regulatory matters has been that jail sentences were to be a sentencing measure of last resort imposed with restraint by the courts. Monetary penalties have been most commonly imposed on individuals convicted of OH&S offences. That sentencing regime likely developed because OH&S regulatory offences are, generally, negligence-based offences rather than intent-based offences – meaning they are, offences of omission (failing to do something required) rather than commission of a reckless or intentional prohibited act.
Recent Canadian OH&S decisions suggest that a shift towards more frequent jail sentences for supervisors, managers, directors and officers may be developing.
Availability of Jail under Canadian OH&S Laws
All OH&S legislation in Canada provides for imprisonment as a possible penalty for those convicted of an offence. The potential length of a custodial term varies from jurisdiction to jurisdiction and ranges from a potential one month term (per offence) in Prince Edward Island to possible two-year terms (per offence) in Saskatchewan, Nova Scotia, the Yukon (where sentences of up to 2.5 and 3 years are available for subsequent offences), and under the Canada Labour Code.
Traditionally, it could be expected that an individual defendant facing an OH&S charge would usually face, at worst, the maximum monetary penalty provided by law. For example, in several very serious matters involving fatal workplace accidents in Ontario, individuals have received fines of $50,000, representing the maximum on two charges each. In likely the best known individual fine in Canada to date, the President and Director of Metron Construction Corporation received a total fine of $90,000 in July, 2012. We discuss that case further below. Again, as a general rule, a Crown Prosecutor is more likely to seek a custodial sentence if a defendant has engaged in egregious conduct such that the defendant’s behaviour is closer to an intentional act than negligence.
An example of the kind of behaviour that has historically been more likely to attract a jail sentence includes a 2006 Ontario case involving a roofing contractor (R. v. J. Cuthbert c.o.b. as Peaks & Valleys Contracting, unreported, October 25, 2006, Ont. C.J., Kingston). A worker employed by the contractor fell from a three storey roof and landed in a refuse bin on the ground. The contractor put a fall arrest harness on the injured worker and instructed him to tell the Ministry of Labour that he had been wearing the harness at the time of the fall. The evidence of the contractor’s actions came to light after charges had been laid by the Ministry of Labour. Ultimately, the contractor pleaded guilty to a charge of failing to ensure that fall protection was used. He was sentenced to 30 days in jail.
A scan of recent cases, particularly in, but not limited to, Ontario, suggests that health and safety prosecutors are beginning to seek jail sentences with greater frequency.
Recent OH&S Cases Involving Jail in B.C.
In British Columbia, British Columbia (Workers’ Compensation Board) v. Moore, 2012 BCSC 109 (CanLII), the British Columbia Workers’ Compensation Board obtained a court order prohibiting the operator of a demolition business from:
doing business in the asbestos abatement business in the demolition or drywall removal business, and without limiting the generality of the foregoing, from providing hazardous material inspections and reports, environmental assessments, hazardous materials surveys and testing, asbestos abatement services are testing, until further order of the court.
The business operator did not abide by the court order and continued to offer the prohibited services. In doing so, the business operator may have exposed unprotected workers to asbestos. He was found guilty of civil contempt of court for breaching the court order and sentenced to 60 days in jail. This was significantly less than the 6 to 12 month term sought by the prosecution.
The case represents the more traditional use of custodial sentences for OH&S-related matters as the sentence imposed on the business operator resulted from the intentional breach of a court order. What is notable about the case is that the Workers’ Compensation Board sought a significant period of incarceration notwithstanding that jail sentences for civil contempt are approached with the same reservation as jail sentences for health and safety offences.
More Recent OH&S Cases Involving Jail in Ontario
In Ontario, a supervisor was recently sentenced to 45 days in jail for failing to ensure the safety of a worker who fell off a roof (Ontario (Ministry of Labour) v. J.R. Contracting Property Services et al., 2014 ONCJ 115 (CanLII)). While removing shingles from a one-storey bungalow, the worker slipped, rolled off the roof and landed on a walkway below. The injury resulted in permanent paralysis of the lower body. The worker testified at trial that he had not been trained in the use of fall protection equipment, had not used it in the past, and that he had not been provided with any fall protection equipment. Following a trial, the supervisor was convicted of failing to ensure the worker wore fall protection devices as required by law and of failing to ensure that an adequate form of fall protection was provided. The legal principle that a defendant should not be sentenced more than once for the same offence was applied such that the supervisor was sentenced only for the offence of failing to ensure that adequate fall protection was provided.
In this more recent case, although the supervisor had no prior health and safety convictions, the Crown sought jail, at least in part, because the supervisor had previous convictions under environmental legislation for which the supervisor had been fined and jailed. Notably, the supervisor had, but for one payment, not been paying the fines imposed for those environmental offences.
The court considered these prior convictions and the supervisor’s non-payment of the previous fines imposed on her when imposing sentence for the health and safety offence. The court determined that the supervisor’s past behaviour, both in not complying with the law and in not satisfying the penalties imposed, indicated that a monetary penalty would not be appropriate. On that basis, the court imposed a 45 day jail sentence and required the supervisor to serve the sentence all at once rather than intermittently over a series of weekends. In Ontario, any sentence of 90 days or less can, if ordered by the court, be served intermittently. This reduces the impact of the sentence on the defendant because it minimizes the impact of the sentence on work and other day-to-day activities or responsibilities. The lack of an intermittent sentence shows that the court intended to impose a harsher sentence on the defendant.
Aside from the sentence imposed, the J.R. Contracting case is also notable because the court held that the Regulatory Modernization Act (an Ontario statute enacted in 2008 that, principally, provides for information sharing between provincial ministries and bodies) provided the authority for the supervisor’s environmental convictions to be treated by the Crown Prosecutor and court as an aggravating factor when sentencing for the OH&S violation. As far as the writers are aware, this was the first time that these provisions have been used in sentencing for a violation of Ontario’s OH&S legislation. It is clear from the case that the supervisor’s prior convictions and unpaid fines weighed significantly in the court’s decision to impose a custodial sentence in a case that might otherwise have attracted a significant monetary penalty but not resulted in jail time. This is a significant development because it establishes further factors that could, if used, increase the probability of a custodial sentence in cases involving a fatality or serious injury.
Another case of note is R. v. Roofing Medics Ltd., 2013 ONCJ 646 (CanLII), from November 2013. Similar to J.R. Contracting, this matter also involved a fall at a construction project. However, in Roofing Medics, the worker that fell was fatally injured. After the accident the proprietor of the company provided false information to police and health and safety authorities regarding the circumstances of the accident. In essence, the proprietor told authorities that the accident did not happen in the course of work (which would mean that Ontario health and safety laws were not engaged). The proprietor revealed this deceit before it was uncovered by the authorities. Ultimately, he was charged, as a supervisor, under health and safety legislation and pleaded guilty to two offences, failing to ensure that proper fall protection was used and providing false information to an OH&S inspector.
At sentencing, the Crown entered a series of Event Information Forms into evidence. The forms represented the frequency with which the Ontario Ministry of Labour had been notified of fall incidents. This evidence proved quite influential with the court and resulted in the court finding that monetary penalties were an inadequate deterrent to non-compliance with legislated fall protection standards. On the fall protection charge, the court determined that a ten-day jail sentence was necessary to send the requisite deterrent message and, notably, wrote:
The reality is that fines have not been sufficient deterrence for these offences […]. The offence and its consequences are serious enough to warrant more intrusive sanctions.
The Crown sought a sentence of 30 days […] on the fall arrest offence. For future offenders, such a sentence may well be appropriate; it may even be on the low side. […] The sentence needs to be of sufficient length to deter other offenders by sending a message that jail is a sanction that the courts will use for fall arrest offences. […] I hasten to add that 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. I note that the maximum jail sentence for this offence is 12 months.
The proprietor was also sentenced to 5 days in jail for providing false information. Thus a total custodial period of 15 days was imposed.
Recent Ontario Decision – Jail Sentences for Directors
It appears that the court’s comment that monetary penalties are an insufficient deterrent has been influential. Indeed, in a most recent case of note, R. v. New Mex Canada Inc. et al. (unreported, January 13, 2015, Ont. C.J., Brampton, Fletcher J.P.) involving a contested hearing where the Crown Prosecutor and Defence presented opposing views to the court, the court sentenced two company directors to 25 days in jail each. Each pleaded guilty to two charges: failing to ensure the company provided information, instruction and supervision to a worker regarding fall protection and/or working at height and to failing to ensure that the company ensured that a worker was protected by fall protection (director and officer provisions in Ontario, as well as B.C., require that directors and officers take all reasonable care to ensure corporate compliance with OH&S provisions including regulations and orders).
The corporation New Mex received a fine of $250,000 on its guilty plea to related charges. The charges in New Mex followed an incident in which a worker was fatally injured after falling from a raised order picker, equipped with a modified platform that did not have guardrails.
Information that is currently publicly available does not indicate what the Crown and defence each argued would be an appropriate sentence. However, the authors understand that the jail sentences imposed by the court were not more than the penalty sought by the Crown. Aside from the fatal worker injury that occurred, there were a number of facts that could have been aggravating factors that increased the sentences imposed on the directors. Amongst other things, the court was told that workers had not been provided with health and safety training; fall protection equipment was not provided by the company; the injured worker was wearing dress shoes not safety footwear; the modified platform on the order picker was on an angle and did not have any features to prevent slipping; further safety concerns involving the use of order pickers were observed by the Ministry of Labour following the accident; the MOL was told that the father of a third director would direct workers to work without safety precautions; and there was evidence that an unknown person had attached a safety lanyard to the involved order picker before the Ministry of Labour arrived to investigate the accident. In short, a large variety of significant aggravating factors was presented to the court in the Agreed Statement of Facts placed before the court.
On their face, the jail sentences against the New Mex directors represent a sentence at the high end of the range. There were also some mitigating factors that traditionally favour a penalty towards the lower end of the range. These factors included that the guilty pleas of the two directors and the company came at a relatively early opportunity (the charges were laid in December 2013 and the guilty pleas were entered in October 2014), trial dates were never set, and, it is the authors’ understanding, neither of the directors had prior convictions under the OHSA.
Reasons for judgment in New Mex are not publicly available so it is not known how much weight the court may have given any potential aggravating factor. The sentences imposed, however, are indicative that the court believed that a jail sentence was required to send the requisite deterrent message to the directors and the public. The directors have appealed the jail sentences meaning an appeal court will consider their appropriateness and, potentially, provide some comments about circumstances that could attract a custodial sentence. Notably, both the New Mex and Roofing Medics cases were decided in the same jurisdiction. It will be interesting to see if the appeal court comments about the adequacy of the deterrent message from monetary penalties.
New Mex and Metron Construction: Differing Approaches to Sentencing Directors
One recent Ontario case stands in stark contrast to the cases referenced above, particularly the New Mex case, as both involve contrasting approaches to the sentencing of corporate directors in OH&S matters. We referred earlier to the sentencing decision of the president of Metron Construction Corporation. In that case, R. v. Swartz, 2012 ONCJ 505 (CanLII), the president pleaded guilty to four OHSA offences arising from an accident in which four workers were killed and another very seriously injured. The company president, Mr. Swartz, was not sentenced to jail but was fined $90,000 ($22,500 x 4) following a joint recommendation by the Crown and defence.
Plea bargaining is confidential meaning that all factors that influenced the negotiations are not public. In comparing Swartz to the other decisions, it must be remembered that Metron Construction pleaded guilty to criminal negligence (and eventually received a fine of $750,000 under the Criminal Code) at the same time as the company president entered his guilty pleas to the OHSA offences. That guilty plea to Criminal Code offences could well have influenced the OH&S negotiations for the director. Regardless, the Swartz case provides an interesting comparison because the Crown agreed to, and the court approved, a monetary penalty for offences that involved multiple fatalities and extremely serious injuries in a very high profile case.
Overall, the lesson these cases provide for individual supervisors, managers, directors and officers is that being locked up in jail after an OH&S conviction is an increasing risk. In contested sentencing hearings (where the Crown and defence make separate submissions and arguments before the court), the Crown is moving towards a practice of placing extensive factual records of all potentially aggravating factors before the courts. This may indicate a more aggressive approach in which jail sentences will be sought more frequently in cases involving serious injuries or risk of harm.
This approach dovetails with the evolution of enforcement practices in many jurisdictions. OH&S regulators have been moving from a reactive system of enforcement (where the regulator engages the workplace parties because of some workplace event) to a more proactive system involving more frequent and targeted workplace inspections. Indeed, in Ontario, one of the recommendations made by the government panel that reviewed the provincial health and safety system in 2010, after the accident involving Metron Construction, was for there to be a consistent approach of tough enforcement for serious and wilful violations of health and safety standards.
We may, therefore, be seeing a change in the approach to sentencing in OH&S cases where jail sentences will be requested by Crown prosecutors and imposed more frequently by courts on individuals convicted of offences involving the breach of OH&S standards, serious injuries or significant incidents. We will keep our readers posted on further developments.