By Jeremy Warning and Deanah I.Shelly.

Firm: Mathews, Dinsdale & Clark LLP

 

In what circumstances can a breach of provincial health and safety legislation lead to a custodial sentence? This article looks at recent case law highlighting repeat offences and non-payment of fines as factors that can lead to jail time for individuals convicted of breaches.

A formula for jail in Occupational Health and Safety Act cases

On 7 May 2019, the owner and sole proprietor of a Belleville, Ontario roofing company was sentenced to seven days in jail after pleading guilty to a fall protection charge under Ontario’s Occupational Health and Safety Act (the ‘Act’) and the Construction Projects Regulation. The charge was laid after a worker was found working on a pitched roof without fall protection. It appears a jail sentence was imposed because the owner had multiple past convictions for the same offence (the oldest of which was about four years earlier) and he had not fully paid fines imposed for these previous offences.

The case is a reminder and demonstration of the circumstances that significantly increase the likelihood of a jail sentence.

Multiple prior convictions + unpaid fines = jail

Although the high courts have held that jail sentences are not reserved for defendants with prior convictions and unpaid penalties, defendants in those circumstances are at much greater risk of going to jail, even where no accident or injury has occurred. In this case, over a period of about four years, the company owner was convicted of breaching the same fall protection provision on three separate occasions. They all involved workers working on roofs without fall protection, but no workers were injured. As the number of convictions grew, so too did the Court’s view that the intended deterrent message was not being received by the owner. By 2015, the total of the fines imposed on the owner was CAD 16,500, not including the additional mandatory 25% victim fine surcharge required by the Provincial Offences Act. First a fine of CAD 2,000 was imposed, then one of CAD 4,500, and finally a CAD 10,000 fine, plus one day in jail. The seven-day jail sentence is a notable step-up in the penalty, suggesting the Court’s intention to deliver a sharper deterrent message.

The case is similar to another Ontario case in which a supervisor was sentenced to 45 days in jail for failing to ensure the safety of a worker who fell off a roof (Ontario (Ministry of Labour) v. J.R. Contracting Property Services et al., 2014 ONCJ 115 (CanLII)). In that case, the supervisor had no prior health and safety convictions but the jail sentence was imposed at least in part because the supervisor had previous convictions under environmental legislation for which fines and jail terms had been imposed. But for one payment, the supervisor had not paid the fines imposed for those earlier offences. The Court determined that the non-compliance with the law and non-payment of the penalties made a monetary penalty inappropriate.

Luckily just jail?

The owner is, perhaps, fortunate that his business operates in Ontario and not Nova Scotia. A similar situation arose there in which the owner of a roofing business was sentenced to jail after repeated convictions for workers working without fall protection. The owner had also failed to pay fines. As a result, in addition to a four-month period of incarceration, the owner was not permitted to work in the roofing industry for four months from his sentencing. If he was released early from jail, he would not be able to operate his roofing company or work in the roofing industry himself until the expiration of the four-month period.

Collectively, these cases clearly show that prior convictions and non-payment of fines will be seen as seriously aggravating factors on sentence and they are likely to attract a jail sentence. Avoiding these circumstances starts with a robust programme to comply with applicable health and safety requirements which should help avoid workplace violations and/or evidence of due diligence that could be used to defend a prosecution, if not avoid it altogether. If fines are imposed, they should be addressed by paying them and seeking extensions of time to pay them where required. That would lessen the ability of the Crown or court to conclude that earlier penalties are being avoided.