While companies are often aware of the serious costs that may arise from charges under Ontario’s Occupational Health and Safety Act (the OHSA), recent decisions suggest that the courts are increasingly willing to levy heavy penalties against supervisors as well, including sentencing them to jail time.
Employers face a number of duties under the OHSA, including the duty to provide a safe work environment and take every reasonable precaution in the circumstances for the protection of a worker. This duty is also shared by supervisors, who are defined by the OHSA to be anyone who has charge of a workplace or authority over a worker, and who is: 1) qualified because of knowledge, training and experience to organize the work and its performance; 2) familiar with the OHSA and the regulations that apply to the work; and, 3) has knowledge of any potential or actual danger to health or safety in the workplace.
Given the overlapping responsibilities for the safety of workers shared by supervisors and employers, it is not uncommon for both to be charged in the event of a workplace accident. This is particularly true where a supervisor was present at the scene of an injury. If convicted of an offence under the OHSA, companies face a maximum fine of $500,000. Supervisors face not only the possibility of substantial fines (up to $25,000), but also imprisonment for a term of not more than one year (or both a fine and imprisonment).
Recently, in Ontario (Ministry of Labour) v. J.R. Contracting Property Services et al., 2014 ONCJ 115 (“J.R. Contracting”), a company and two supervisors were charged where a worker suffered permanent paralysis after a fall from height. The worker had not been trained in the use of fall protection equipment, and had not been provided with any such equipment. The Court convicted one supervisor for failing to ensure that an adequate form of fall protection was provided to the worker.
When it came time to determine an appropriate punishment, the Court in J.R. Contracting took the unusual step of noting that the supervisor had four prior convictions under provincial legislation. Those convictions were all under the Environmental Protection Act stemming from her operations of an unlicensed waste-management business. In nearly all of the previous instances the supervisor had failed to pay the fines ordered by the Court.
Despite the fact that the supervisor’s previous convictions were unrelated to the OHSA, the Court considered them aggravating factors and sentenced the supervisor to 45 days in custody. The Court did this by relying on a statute called the Regulatory Modernization Act, 2007, which explicitly allows a court to consider a prior conviction under any provincial law (for example, the Highway Traffic Act) as an aggravating factor when imposing a sentence under any other provincial legislation. We believe this to be the first instance of the Regulatory Modernization Act, 2007 being used in this way, and it is too early to tell whether it may result in more significant punishments being levied for violations of the OHSA. However, there is clearly some risk that supervisors, who may hold convictions stemming from traffic offences, may face more significant penalties as a result.
The concern that supervisors may face increased risk in OHSA prosecutions is far from an academic worry. In R. v. Roofing Medics Ltd., 2013 ONCJ 646 (Roofing Medics), a supervisor was convicted of failing to ensure the use of fall protection equipment and knowingly providing false information to a Ministry of Labour inspector. In sentencing the supervisor to 15 days in jail, despite the fact that he had no prior convictions, the Court held that jail time was necessary to deter the industry as a whole from failing to follow the fall protection requirements of the OHSA. The Court stated at paragraph 24, “[t]he reality is that fines have not been sufficient deterrence for these offences; not for Mr. Markewycz [the supervisor] and not for others. The offence and its consequences are serious enough to warrant more intrusive sanctions.”
The Court’s willingness to levy jail time against the supervisor in Roofing Medics due to the general failure of fines to act as a deterrent throughout the industry is concerning. There is a potential that the case will be cited in future to justify jail sentences against supervisors in situations where a fine may have been levied in the past.
Both of the cases discussed above suggest that supervisors should be well aware of their responsibilities under the OHSA and diligent in ensuring that they satisfy their obligations. It also reinforces the benefit of engaging in plea discussions with the Crown; in both of the above cases, the supervisors proceeded to trial which, in many cases, can result in a harsher sentence than can be achieved through negotiations with the Crown.
Finally, in the event that a supervisor is charged, it will be important to assess early on whether their interests align with those of the company (which may also have been charged). In many cases, counsel will be able to act for both parties. However, in cases where the company and supervisor’s interests conflict, it will be important to ensure that the supervisor speaks with counsel in order to assess their liability under the OHSA and the likelihood of conviction (and possible jail time).