A recent legal analysis of the court’s decision in last year’s Lafarge Canada case suggested Ontario may enter a new regime of stricter penalties for employers found guilty of multiple workplace safety offences.
Last January, for the fourth time since 2003, the Mississauga-based cement company was convicted of workplace safety violations under the Occupational Health and Safety Act (OHSA), with three of the four convictions involving fatalities.
While giving a tour of a decommissioned cement plant located near Ingersoll, Ont. in August 2017, a worker fell 30 feet from a corroded walkway and later died in hospital. Lafarge was found guilty of violating section 72 of Ontario Regulation 851, the Industrial Establishments Regulation, for failing to brace the walkway or effectively prevent access to the area.
In reluctantly sentencing Lafarge to what he considered a moderate fine of $400,000 in June, Justice of the Peace Michael A. Cuthbertson wrote that historically in Ontario, the maximum fine in such cases has never been issued, nor are parole conditions to ensure workplace safety is being monitored ever considered.
This will significantly increase the jeopardy that employers face,
— Fredrick Schumann
That could well change if future judges follow Justice Cuthbertson’s prescriptions in his reasons for judgment, suggested Toronto lawyer Fredrick Schumann of Stockwoods LPP, writing in Canadian Lawyer magazine this month. The judge’s written reasons were released Sept. 20.
The judge in Lafarge wrote that he hoped to “begin a shift in the paradigm of the application of the OHSA in joint submissions in matters involving deaths and critical injuries…I trust that the management of Lafarge and other large corporations are listening.”
“The words in Lafarge may indeed signal the beginning of a changed approach to workplace fatality cases in Ontario,” Schumann commented.
“This will significantly increase the jeopardy that employers face in cases of workplace death or injury.”
Schumann is not the only lawyer who thinks the Lafarge case could signal a stricter new era of sentencing in workplace deaths, he said in an interview. He has received reaction to his article with one lawyer calling it a “striking decision,” he said.
“I think if this decision is going to be influential it will be as a wake-up call to change the way things are typically done,” Schumann said. “It would change the way people think about and look at sentencing in these cases, that is the potential influence.
“I am not sure if it going to be picked up though because it is quite recent.”
The maximum fine possible in the Lafarge case was $1.5 million. As often happens when a prosecutor has a strong case and both sides want to avoid a trial, the prosecutor and the defendant’s lawyer forwarded a joint submission to the judge offering a guilty plea and recommending the $400,000 fine.
Judges typically accept joint submissions, Schumann noted, following the 2016 Anthony-Cook case in which the Supreme Court of Canada held that a joint submission should be adopted unless it is “so unhinged from the circumstances…that its acceptance would lead reasonable and informed persons…to believe that the proper functioning of the justice system had broken down.”
That was not the case in Lafarge, the judge wrote, and besides, he had to consider “the family’s desire, as stated by the Crown, to bring this matter to a conclusion so they can move on with their lives. Equally compelling was the potential impact on the family of difficult and unpleasant evidence.” And so, the judge accepted the deal for the $400,000 fine.
“But he did not stop there,” Schumann wrote, and upon further exploration of sentencing precedents, the judge discovered that fines never seemed to go up upon multiple offences. “The range of sentences had become a self-fulfilling prophecy, which ‘has not achieved the deterrence objectives of the OHSA,’ ” Schumann wrote, quoting the judge.
The judge proposed a new formula to be used with multiple offenders in cases involving deaths — fines would double for the second offence, triple for the third and so on.
The judge then proceeded to discuss other ways to encourage compliance with OHSA regulations. One tool that would be appropriate in OHSA cases is to require the firm to employ an “embedded auditor” during a parole period who would monitor health and safety compliance, the judge wrote.
“Maybe the courts are starting to see that as necessary if the fines aren’t doing the trick,” Schumann said.
In his conclusions, the judge suggested that in future in similar cases prosecutors should submit data on the range of fines to assist judicial officers.
“In my view, the questionable presentation of meaningful data has created a scenario in Ontario whereby deterrence as contemplated under the OHSA is not being met,” he wrote. “I understand how the situation which has evolved meets the interests of defendant corporations but I am at a loss to understand how it meets the interests of the Ministry of Labour or the public.”
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