In, Ontario (Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53, an employer was fined $50,000 after an employee badly injured her foot and the employer was found to have breached two provisions of the Ontario Occupational Health and Safety Act (OHSA), R.S.O 1990, c, O.1.

This decision was an appeal, in part, from the Ontario Court of Justice dealing with mitigating factors on sentencing and a court’s jurisdiction to impose concurrent fines.

The employer was an automobile parts manufacturer in Ontario. The incident in question occurred when the employees, following standards procedure, were working arounf a forklift. The forklift was loading a bundle of metal sheets when it slipped off the cradle causing metal sheets to scatter across the floor, one of which struck the employee’s foot. As a result, the employee broke several bones in her foot and was on crutches for two months and off work for 4.5 months. She underwent physiotherapy for a year, and still experienced residual pain in her foot at the time of the decision.

Following the incident, an inspector from the Ministry of Labour issued two orders against the employer: (1) compliance with regulatory provision for the safe movement of material and (2) a stop work order. The employer took corrective action to comply with the orders, but did not go beyond what was required.

At trial, the employer was convicted of two offences under the OHSA and fined $25,000 for each offence. The employer appealed its sentence and convictions. Although the conviction appeal was dismissed, the sentence appeal was allowed and the fines were made “concurrent” based on the corrective action taken by the employer.

The Ministry of Labour appealed on two issues, “(1) the issue of mitigation after an order has been made by an inspector under the OHSA and (2) the issue of concurrent fines under provincial legislation.”

The Ontario Court of Appeal upheld the Ministry of Labour’s Appeal. The Court of Appeal concluded that a court should not have discretion to treat an employer’s post-offence compliance, though statutorily required, as a mitigating factor on sentencing. Doing so, in the view of the Court of Appeal, would undermine one of the most important goals of the OHSA – accident prevention – and the statute’s most important sentencing principle – deterrence. On this basis, the court held that action that is taken in response to a compliance order shall not be considered a mitigating factor on sentencing.

With respect to the issue regarding the court’s jurisdiction to impose concurrent fines, the Court of Appeal reinstated the total fine of $50,000. This decision was based on the fact that the OHSA, the Provincial Offences Act and the Criminal Code are silent with respect to a court’s jurisdiction to impose concurrent fines. Further, in a criminal case R v. Ward (1980), 56 C.C.C. (2d) 15 (Ont. C.A.) the same Court of Appeal had held that there is no authority to impose a concurrent fine.

For employers this decision closes the door to the use of actions taken in response to a compliance order as mitigating factors on sentencing. Only steps taken to promote health and safety in the workplace that exceed the steps set out in orders will be relevant as mitigating factors on sentencing. In light of this, employers can benefit from taking proactive steps, beyond minimum compliance with Ministry of Labour orders, to improve health and safety management systems in the workplace. Such actions could prove beneficial in relation to sentencing for any OHSA infractions that may have triggered such internal reviews.

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