We know that Courts are increasingly more willing to impose significant six and seven figure fines on employers convicted of criminal workplace negligence or occupational health and safety violations. Indeed, we reported on two recent examples where the companies were given record fines in occupational health and safety and criminal negligence convictions.
In one case, the company entered a plea of guilty and agreed to pay a fine of $1,050,000 for a double fatality, when an uncontrolled release of broke rock, or "muck", buried one worker and struck and killed another worker in a mine.
In the other case, the company pleaded guilty to one count of criminal negligence causing death, under the Criminal Code of Canada, in relation to the death of four workers who fell when a swing stage scaffold collapsed. In their decision on a sentence appeal, the Court of Appeal for Ontario increased the fine against the employer, Metron Construction, from $200,000 to $750,000, describing the higher fine as a "fit fine in the circumstances".
But are Courts also prepared to impose jail time on supervisors for their actions or inactions on the job? The answer is yes, having regard to the recent decision in J.R. Contracting. At least in Ontario.
The company was in the business of garbage removal and hauling. A worker was instructed to remove shingles from the roof of a property. The worker tripped and fell off the roof, suffering permanent paralysis of his lower body.
The injured worker testified that he was not being trained in the use of fall protection equipment. The court was also provided with evidence that fall protection equipment was not provided by the company.
The result? The court sentenced the company's supervisor to 45 days in jail after concluding that the supervisor failed to:
- ensure that a worker wore protective devices as required by law; and
- take the reasonable precaution of ensuring that an adequate form of fall protection was provided to the worker.
The court also:
- fined the company $75,000; and
- fined another company employee $2,000 for obstructing a Ministry of Labour investigation.
Take-Aways for Employers and Supervisors
There are a number of lessons that employers and supervisors can learn from the J.R. Contracting result:
- Employees across Canada, particularly supervisors, can be criminally liable for their actions and inactions on the job. Although J.R. Contracting arose in Ontario, given how similar occupational health and safety legislation is across the country, the result could be the same in every province.
- The Courts are sending clear messages to employers and their supervisors that when they are convicted of violating occupational health and safety legislation or Bill C-45 (of the Criminal Code of Canada), punishment may be severe. It is no longer unprecedented for Courts to send supervisors to jail or impose six or seven figure fines.
- Having regard to this risk, investments should be made in health and safety management as well as safety training and prevention. Employers should ensure that all employees are fully aware of their safety obligations and that they are trained and regularly re-trained in this regard. Employers should also ensure that employees adhere to their safely obligations at all times, which includes remedying safety concerns as soon as they are discovered.