The range of potential sanctions under Ontario’s Occupational Health and Safety Act are vast and, on its surface, potentially ominous for even the most minor of OHSA infractions. Companies in non-compliance with a health or safety requirement are seemingly at the mercy of the Ministry as to whether they prosecute (in addition to orders and penalties) and, if so, whether they pursue fines or even (gulp) incarceration.

Whereas the range of fines for various types of breaches and resulting harms are somewhat predictable, the circumstances where a Court will take the extraordinary step of ordering jail time has been somewhat of a black box. The recent decision from the Ontario Court of Appeal, Ontario (Labour) v. New Mex Canada Inc., may have changed this.

Vulnerable Worker Falls to Death

A worker fell to his death at a warehouse at New Mex Canada Inc. but under a number of aggravating circumstances:

  • the deceased worker had epilepsy, known to the employer, and was working on an elevated open-ended platform as an order picker;
  • he had a history of workplace fainting spells;
  • the platform was polished steel and the worker wore dress shoes and had no fall protection equipment; and
  • he had never received health or safety training.

It was found that a seizure likely caused his death, which may have been prevented by just basic compliance with the OHSA Industrial Regulations requirements. In short, it was the type of case likely to attract the high range of available OHSA sanctions. So, what happened?

Directors Each Sentenced to 25 Days’ Incarceration

A slew of OHSA charges were brought against the company and its directors. In the prosecution, the Court effectively found that the company directors had an active role in the operation of the warehouse, which implicitly included OHSA compliance.

Without relying upon past OHSA non-compliance and in the face of remorseful Defendants, the sentencing Court was not satisfied in sanctioning the company alone (the typical outcome) and, instead, held all parties guilty of numerous charges and imposed a total fine of $250,000 on the company and issued matching 25-day intermittent prison sentences plus 12 months’ probation for the two directors. A result that should have sent Ontario directors and officers scrambling to ensure they were protected from such sanctions.

Willful as Opposed to Merely Negligent?

New Mex Canada appealed and succeeded in reducing the fines, with the company’s obligation lessened to $50,000, and $15,000 in total fines for the directors. More importantly, the Court affirmed prison sentences are unusual and, in a moment of potential clarity in the law, incarceration was imposed, “for conduct that was willful as opposed to merely negligent.” A tangible and instructive distinction had just been set.

Proportionality, Parity and Deterrence – But Not Willfulness

It didn’t last. The Court of Appeal ultimately affirmed the reduced fines (and the freedom of the directors) but would not accept that willfulness was the fulcrum upon which justice might tip towards incarceration. Instead, the Court of Appeal declared, with more words yet perhaps less clarity, the test was:

“What amount of fine is required to achieve general and specific deterrence, and would otherwise be appropriate bearing in mind the principles of sentencing, including proportionality, and parity?”

In other words, sufficient deterrence did not require imprisoning the contrite directors.

Willfulness in All But Name?

What are we left with? We know in looking at imposing potential incarceration, the Court will certainly look at the usual suspects, such as corporate and personal blameworthiness, contrition, a preference of fines over incarceration, the ability to pay, and corrective measures such as compliance with orders issued after an accident. But maybe we have also learned that the absence of willfulness in causing harm to a worker makes jail time remote, even if assessed, instead, in the name of proportionality, parity, and deterrence.

It’s important to note that Ontario (Labour) v. New Mex Canada Inc. was a proceeding under the OHSA, not a criminal negligence proceeding under s. 217.1 of the Criminal Code. As we wrote about in relation to the Metron Construction decision, s. 217.1 of the Criminal Code was introduced in 2004, following the Westray Mine disaster, and encompasses criminal liability for organizations and corporate officers who fail to take reasonable steps to prevent death or bodily harm. Mr. Kazenelson, a senior officer of Metron Construction, was the first individual to be convicted and sentenced to a prison term under s. 217.1.