Workplace Fatalities Lead to Large Fines and Jail Time for Directors
In the first two weeks of 2015 the Ontario courts have levied a total $985,000 in fines and ordered 50 days of jail time in relation to four separate prosecutions wherein OHSA violations caused workplace fatalities.
On January 13 New Mex Canada was fined $250,000 and two of its directors were jailed for 25 days each arising out a 2013 accident in which a worker fell over three meters from an unguarded platform. The worker had received no safety training, including training on fall protection.
Also on January 13, Hydro One Networks Inc. pleaded guilty and was fined $325,000 for its failure to ensure that equipment at a project was stored and moved in a manner that did not endanger a worker. A worker was killed while moving power equipment at one of the company’s transmission and distribution stations in eastern Ontario.
On January 14 Parmalat Canada Inc. pleaded guilty and was fined $290,000 for its failure to utilize a signaller at its Brampton facility for a reversing tractor-trailer. The tractor-trailer struck and killed a Parmalat employee.
On January 15 Future Mobility Healthcare Inc. pleaded guilty and was fined $150,000 for failing to ensure that materials or equipment were lifted or moved safely. While a tractor- trailer at the company’s Mississauga facility was being unloaded, a 3500 pound machine tipped over, pinning and killing a worker.
All of the fines are automatically subject to the victim fine surcharge compounding the financial liability by an additional 25 per cent.
Absent detailed reasons for sentencing from the courts, it is difficult to explain the wide range of the fines levied in these prosecutions and why jail sentences were imposed in just one of the four prosecutions.
As to the range of fines, there is obviously no OHSA prosecution more serious than one that involves a fatality. From available precedents, the courts appear to have accepted that, in the case of a fatality, the starting point for the total fines imposed on corporations should approximate $125,000 to $150,000. Mitigating factors, such as an early guilty plea and co-operation with the investigation usually factor to reduce the fine. Aggravating factors, such as prior convictions under the OHSA, count to increase the fine.
In all cases the size or economic viability of the company is perhaps the factor with the greatest influence over the size of fines. Larger companies with greater financial resources should expect higher fines. Smaller companies with less financial resources frequently request and obtain an abatement of the fine. Why? The courts have found the size of the fine should not be a mere licensing fee for the offence, otherwise the sentencing objectives of general and specific deterrence are not properly served. On the other hand, the fine should not be so large that it is oppressive, “crushing” the defendant. To this point in regulatory proceedings like those under the OHSA, this has caused the courts to refrain from imposing fines that are beyond the means of the convicted company to pay. However, recent criminal case law has found that a company’s inability to pay a large fine is but one factor to consider and is not determinative of the size of the fine. This may cause the courts to rethink their approach in future regulatory OHSA proceedings if the moral blameworthiness for the offence requires it.
As to the jail sentences for the two directors, jail time in any OHSA sentencing is rare. It is usually reserved for situations where an individual has interfered with an investigation by misleading or lying to inspectors, or for cases involving a repeat offender leading the court to be concerned that the use of fines alone is not sufficient to deter an individual from future violations of the OHSA. However, that does not mean that the sentences for the Nex Mex directors was unfit. It is unknown on the presently available record whether they had prior convictions under the OHSA. But, assuming they did not, if their moral blameworthiness for the offences before the court was found to be sufficiently serious, a jail sentence would be warranted, albeit for a first offence. In that regard, it is noteworthy that in 2013 Ontario Court Justice Nelson in R. v. Roofing Medics found that an individual having caused the death of a worker by failing to require compliance with the fall arrest regulations should be jailed.