Mitigating Factors in Occupational Health and Safety Charges

The Ontario Court of Appeal recently determined that an employer’s actions taken to comply with a health and safety inspector’s order will not be considered a mitigating factor in determining the appropriate sentence.

Flex-N-Gate is an Ontario employer which produces automobile parts. It produces vehicle bumpers by processing metal sheets which are stored in approximately 5000 pound bundles of 120-170 sheets. On January 28, 2004 a forklift operator was in the process of loading a bundle onto a production line when the bundle came apart, causing the sheets to scatter, striking and injuring a worker’s foot in the process. The worker underwent surgery and was unable to work for more than four (4) months.

A Ministry of Labour inspector investigated the accident and issued two orders pursuant to the Occupational Health and Safety Act (the Act): one requiring compliance with the safe movement of material, and the other halting production until the other order was fulfilled. The employer complied with both orders immediately.

The Employer was convicted of two offences under the Act: failing to ensure that material was moved in a manner that did not endanger the safety of a worker, and failing to provide information, instruction and supervision to protect the health and safety of workers. At trial, the Justice of the Peace imposed two fines of $25,000 for each offence, totalling $50,000. In making this award, the Justice of the Peace considered the employer’s compliance with the orders (among other reasons) as to why a higher sentence should not be imposed.

The employer appealed to the Ontario Court of Justice. The appellate judge dismissed the conviction appeal but allowed the sentencing appeal, in part, by changing the fine to “concurrent” fines, such that $25,000 was to be paid once instead of twice. The judge also considered the employer’s immediate compliance with the orders as a mitigating factor.

The Ministry of Labour successfully appealed to the Ontario Court of Appeal where it was determined that the lower courts had erred in rewarding the employer for complying with the inspector’s orders. The Court of Appeal stated instead that failure to comply with an inspector’s orders is a violation of the Act, and post-offence compliance must not be considered during sentencing, as this would work against the Act’s objectives to deter non-compliance generally and to prevent accidents. However, the Court indicated that if the employer were to do something above and beyond the requirements of the Act or orders of the inspector, a sentencing judge may properly take this into account, although this cannot be given more weight than the due diligence efforts the employer could have taken prior to the accident.

Regarding the concurrency of fines, the Court of Appeal relied on prior case law which established that where the employer is sentenced to pay a fine, a separate fine must be imposed for each offence.

This decision from the Ontario Court of Appeal thus establishes two sentencing principles relevant to employers in Ontario. First, compliance with an inspector’s order prior to a formal conviction through trial will not be considered a mitigating factor in sentencing, and second, where an employer is sentenced to be fined for more than one offence, fines cannot be concurrent, and a fine must be issued for each offence.