No special treatment for complying with the law, appeal court rules

Feb 05, 2014

Judge's gavelComplying with Ministry of Labour work orders is no reason for courts to go easy on violators, an Ontario Court of Appeal has ruled. The court overturned an earlier decision that cut an employer's fine in half as a "reward" for complying with work orders.

The incident: an employee of an automobile parts manufacturer injured her foot when struck by a sheet of metal. The employee required surgery, was off work for five months, on crutches for two months, and still has pain in her foot. The injury occurred while the employee was following procedures for transferring bundles of metal sheets to production lines.

The ministry's response: an inspector who investigated the incident issued two orders -

  • comply with a regulatory provision for moving materials safely, as per section 45(a) of the Industrial Establishments Regulation
  • stop using equipment involved in the incident until the company has complied with the first order.

The company complied immediately by introducing a new procedure for moving the metal sheets.

Following an investigation, the ministry laid charges against the company. A trial resulted in convictions under the Occupational Health and Safety Act (OHSA) for having failed to

  • ensure that material was moved in a manner that did not put any worker at risk, as prescribed by s. 45(a) of the Industrial Establishments Regulation
  • provide information, instruction and supervision to protect the health and safety of workers, contrary to the OHSA.

The employer was fined $50,000 - $25,000 for each offence.

The appeals

First, the employer appealed both the convictions and penalties. The judge hearing the appeal dismissed the conviction appeal but allowed the sentence appeal. While not changing the amount of the fine for each offence, she made the fines "concurrent," requiring the employer to pay only $25,000 instead of $50,000. In her decision, the judge noted that "little weight was given to the corrective action taken by the appellant."

Then the Crown appealed. At issue were these two questions:

  1. Should the court consider the employer's corrective action as a mitigating factor? The appeal court agreed with the Crown's position that the employer should not be rewarded for complying with legal requirements. However, the judge ruled, "if an employer takes corrective action that goes beyond what was required by an inspector's order, then a court may take that additional action into account in sentencing the employer."

    Workers are best protected when their employers implement procedures that will prevent incidents from occurring, says the decision. "Rewarding an employer for taking corrective action only in response to an inspector's order reduces an employer's incentive to take this action before an accident occurs."

  2. Does the court have jurisdiction to impose concurrent fines? Noting that the OHSA and Provincial Offences Act say nothing about concurrent fines, the appeal court based its decision on case law for criminal proceedings. In such proceedings, the court has no jurisdiction to impose concurrent fines. The appeal court accepted the Crown's appeal and reinstated the two fines for $25,000.

How to prevent this from happening to you

Although this employer thought its procedures were safe, a serious injury still occurred. To keep your workers as safe as possible, take these steps:

  • Review and update your hazard assessments, and develop an action plan for any uncontrolled hazards.
  • Ensure workers and supervisors understand their roles and responsibilities, and know how to fulfill them. Start with orientation training.
  • Review your hazard reporting process and procedures, and ensure workers and supervisors know how to follow them.
  • Communicate with workers and supervisors about reported hazards and any steps taken. For instance, explain the nature of the hazard, how you're addressing it, and what progress is being made.
  • Draw on outside expertise as required. WSPS consultants conduct assessments to identify and correct hazards before they become the subject of a work refusal.