In Ontario (Labour) v. Flex-N-Gate Canada Company, a decision released on January 23, 2014, the Ontario Court of Appeal considered two issues in sentencing of violations of the Occupational Health and Safety Act(“OHSA”). Specifically, the Ontario Court of Appeal considered whether compliance with an OHSA order constituted a mitigating factor in sentencing and whether it was permissible to impose concurrent fines under the OHSA regime. 

A Flex-N-Gate employee suffered an injured foot while unbundling bounds of metal sheets. Following an investigation, the Ministry of Labour (“MOL”) issued two orders under the OHSA. The first order required Flex-N-Gate to comply with the regulatory provision for the safe movement of material. The second order required Flex-N-Gate to stop work until it complied with the first order. Flex-N-Gate was ultimately convicted of two offences under the OHSA related to the workplace accident and ordered to pay $25,000 for each offence totalling $50,000. The Ontario Court of Justice held that the actions taken by Flex-N-Gate in compliance with the MOL orders was a mitigating factor. Accordingly, the Ontario Court of Justice ruled that the fines should be paid concurrently resulting in a total fine of $25,000.

The MOL will often issue orders to an employer following an investigation into a workplace accident. An employer can either comply with the orders or appeal them to the Ontario Labour Relations Board. Historically, compliance with such orders has been pled as a factor warranting a reduced sentence. It is important to note that failing to comply with an MOL order is itself an offence under the OHSA.

The Court of Appeal held that compliance with an order of the MOL following a workplace accident is not a mitigating factor in sentencing. The Court of Appeal noted that rewarding corrective action in response to an inspector’s order reduces the incentive to take action before an accident occurs. As such, the goals of accident prevention and deterrence would be undermined if post-offence compliance was a mitigating factor. However, the Court of Appeal held that action taken by an employer post-accident that goes beyond what was required by an inspector’s order and pre-accident steps taken to promote health and safety are factors warranting a reduced sentence.

The Court of Appeal also found that that there is no authority to impose concurrent fines under the OHSA or the Provincial Offences Act. The Court of Appeal noted that concurrent custodial sentences may be imposed. However, where the sentence is a fine a court must impose separate fines for each count.

The decision reiterates the importance for employers to regularly review workplace policies and practices to ensure a safe workplace. Taking proactive steps will not only be a mitigating factor on sentencing but will also be critical in successfully arguing a due-diligence defence.