Supervisor Jailed for OHS Offence Because of Other Convictions
In Ontario (Ministry of Labour) v. J.R. Contracting Property Services (“J.R. Contracting”), the Ontario Court of Justice sentenced a company supervisor to 45 continuous days in jail for violating the Occupational Health and Safety Act (“OHSA”) by failing to ensure the safety of a worker who fell from a roof. The worker suffered permanent paralysis of the lower body and testified at trial that he had not been trained in the use of fall protection equipment, and that he had not been provided with any fall protection equipment.
The Court sentenced the supervisor for failing to ensure that an adequate form of fall protection was provided. In providing the jail sentence, the court applied infrequently used provisions of the Regulatory Modernization Act in order to treat the supervisor’s incarceration and failure to pay fines for provincial environmental offences as factors justifying a more severe penalty for the OHSA offence.
This appears to be the first time a sentence imposed under the OHSA has considered the defendant’s record under other provincial statutes and signals a greater willingness by the Ministry of Labour to use other regulatory convictions in sentencing proceedings. The upshot is that defendants with convictions under statutes administered by, for example, the Ministry of the Environment, Ministry of Transportation, or Ministry of Health and Long-Term Care or designated administrative authorities such as the Technical Standards and Safety Authority or Electrical Safety Authority could have those convictions used against them in subsequent proceedings, such as OHSA prosecutions.
It is also notable that the court required the supervisor to serve a continuous 45 day sentence. In Ontario, jail sentences of less than 90 days may, in the court’s discretion, be served intermittently. This means that the defendant can serve the jail sentence on weekends. An intermittent sentence reduces the disruption of the custodial sentence and is seen as a more lenient disposition. However, by ordering the supervisor to serve a continuous jail sentence, the court imposed a harsher sentence.
Further, this is the second recent jail sentence in Ontario for a contravention of the OHSA. In R. v. Roofing Medics Ltd. (“Roofing Medics”), a supervisor pleaded guilty to failing to ensure the use of fall protection equipment and knowingly providing false information to a Ministry of Labour inspector. As part of the sentencing proceedings, the Crown tendered evidence showing that the Ministry of Labour is frequently notified of incidents involving falls. The court relied on this information to conclude that the deterrent message was not being adequately served by imposing financial penalties on defendants. Consequently, the supervisor received a 15 day jail sentence – 10 days for the fall protection violation and 5 days for providing false information. The supervisor was permitted to serve the sentence on an intermittent basis.
The J.R. Contracting and Roofing Medics cases indicate that, at least in contested sentencing matters, the Ministry of Labour is moving towards a practice of placing extensive factual records of all potentially aggravating factors before the courts. They also suggest that Ministry of Labour prosecutors are becoming more aggressive about seeking custodial sentences against individuals convicted in cases involving serious injuries.
Additionally, the J.R. Contracting case should encourage employers and management to pay greater attention to individual and corporate Provincial Offences records. Prior convictions and unsatisfied penalties may be used as aggravating factors in sentencing. In light of this, consideration should be given to contesting provincial regulatory charges or achieving resolutions that are as favourable as possible in terms of the number of convictions and any agreed upon penalty. As well, steps should be taken to ensure that all penalties imposed are addressed. Unsatisfied sentences may be seen as a lack of remorse and an indication that the previous sentences did not have the intended deterrent effect, thereby increasing the likelihood of a more severe penalty.
If you have any questions about these recent decisions, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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