The Ontario Court of Appeal has ruled in Ontario (Labour) v Flex-N-Gate Canada Company that post-accident compliance should not be considered a mitigating factor in sentencing for a conviction under the Occupational Health and Safety Act (“OHSA”).

An employee was injured in a workplace accident when metal sheets fell off of a forklift and struck the employee’s foot, causing several broken bones. Following the MOL’s investigation into the accident, an MOL inspector issued two compliance orders. The company immediately complied with both MOL orders.

The employer was ultimately convicted of two offences under the OHSA and a Justice of the Peace sentenced the company to a fine of $50,000 ($25,000 for each offence). The company appealed the sentence, and the Ontario Court of Justice reduced the company’s sentence to $25,000. In its reasons, the Court considered it a mitigating factor that the employer had complied with the MOL’s orders after the accident.

The MOL brought an appeal to the Ontario Court of Appeal. In a unanimous judgment, the Court rejected the Ontario Court of Justice’s reasoning that post-accident compliance could reduce an employer’s sentence. The Court held that rewarding compliance with an inspector’s orders undermined the goal of accident prevention and reduced the deterrent effect of sentences for violations of the OHSA. Moreover, it was noted that failure to comply with a post-accident order is itself an offence under the OHSA. The Court allowed the appeal and reinstated the two $25,000 fines that the Justice of the Peace had originally ordered.

In light of the Ontario Court of Appeal’s decision, employers must now recognize that complying with the MOL’s post-accident orders will not have the potential to reduce a sentence for violating the OHSA. However, the decision stated that going above and beyond what is required in the MOL’s compliance order could be taken into account in sentencing.  As well, the Court held that action taken by a company before an accident could be considered in the mitigation of a sentence.

The decision emphasizes the importance of maintaining a proactive approach to health and safety in the workplace. Clear health and safety policies and well-communicated best practices are critical in preventing workplace accidents. In addition to complying with all occupational health and safety legislation, regulations, and mandated training, employers should continuously communicate the importance of workplace health and safety to their employees.  Actions taken to address gaps in the health and safety system of a company prior to an accident should be documented and will be evidence to use towards mitigation of any eventual sentences a company may face. Once an order is issued by the MOL however, compliance with such orders will not be useful for that purpose. In light of the reasoning of the Ontario Court of Appeal there is benefit to employers being proactive in managing health and safety in the workplace before an accident occurs.

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