Ontario leads Canada in many areas, including the number of contractors who are prosecuted every year for Occupational Health and Safety Act (OHSA) violations.
Ministry of Labour (MOL) inspectors are tolerated at best, and dreaded at worst, when they come to a project. They have a single-minded focus on enforcement, rather than collaboration, under the OHSA. GCs, trade contractors, and their supervisors are the primary target of MOL prosecution in the courts when things go wrong on the project. But does the MOL aggressive prosecution policy really work and make construction projects safer? Contractors, supervisors, unions and workers all have an interest in a safe and healthy workplace. For example, when employers try to establish and enforce rigorous substance abuse and testing policies to make the workplace safer, the unions cry foul and the MOL does not support the employers.
However, when an accident occurs on a construction project, it is the employer and their supervision that get blamed, prosecuted and convicted under the OHSA. Prosecutions can result in very high fines, even jail terms, but they do nothing to directly improve the health and safety of workers in Ontario’s construction industry.
One such recent OHSA prosecution raised such a concern about how to better engage and motivate workplace stakeholders on OHSA compliance. It may be time for a new approach to compliance of health and safety laws in Ontario’s construction industry. In R. v. Vixman Construction Ltd., the employer was convicted on December 19, 2019 of two counts of contravening the OHSA, arising from the death of a worker killed at Toronto’s Billy Bishop Airport.
After the conviction, the Ministry of Labour and the Company agreed to a joint submission on the imposition of a fine of $125,000 plus the 25 per cent victim’s surcharge.
However, in a creative and controversial decision, Justice of the Peace Fantino criticized the current fine only mentality as the only means of enforcement to hold employers accountable under the OHSA. The Kathleen Wynne Liberal government, of course, had increased the fine on an employer from $500,000 to $1.5 million per count, without any construction industry consultation in December 2017.
Justice of the Peace Fantino recognized in his Sentencing Judgement that under the Criminal Code, DPAs (Deferred Prosecution Agreements) and principles of sentencing for corporations are set out in detail.
However, for the prosecution of quasi-criminal, provincial offences, such as health and safety charges, there is no such guidance or flexibility.
I have advocated the use of Administrative Monetary Penalties (AMPs) and DPAs to address safety compliance and enforcement. DPAs are used in the United States, the United Kingdom, France, Australia and other countries, to allow corporations to accept responsibility for failing to comply with important regulatory or criminal laws.
However, once the monetary penalty and remediation terms of the DPA are complied with, the charges are withdrawn. This is done without the corporate employer having to plead guilty, get a record, and risk debarment from government, 3P, and private construction projects.
Justice Fantino in Vixman acknowledged that the options that currently exist, guilty pleas or full-scale trials, are too limited in scope. He then went on to set out a seven step Probationary Order for the company to comply with to “prevent similar unlawful conduct and to contribute to the rehabilitation of the defendant (construction company) with reporting obligation.”
Justice Fantino went on to say, “in view of the totality of the circumstances, I feel compelled to render a decision which deviates from the conventional deterrents and fine paradigm. It is my sincere belief that this approach strikes a more appropriate balance for the benefit of all stakeholders which not only adheres to the sentencing principles established in Cotton Felts but also furthers the interests of justice for the implementation of a creative sentencing alternative intending to prevent future harm and contribute to the rehabilitation of the defendant while honouring (deceased name) life.”
The threat of a crippling fine for construction companies in Ontario using the “stick” rather than the “carrot” to improve workplace safety is flawed. A construction company has a better chance of negotiating a DPA if it commits a crime, like price fixing or bribing a public official, than it does if commits a regulatory offence under the OHSA. The criticism by Justice Fantino, in my opinion, is warranted.
There has been a growing recognition by Occupational Health & Safety (OHS) Professionals, and the now courts, of the lack of effectiveness of using the “big stick” of larger and larger fines. The Vixman case is a clear reminder that the law need not standstill, that old ways need not be used forever, and that improved methods of compliance and enforcement can be engaged.
It is the writer’s respectful view, having defended hundreds of OHSA charges for construction company and supervisory clients in Ontario and across Canada, the prosecution enforcement model is usually an ineffective means of promoting workplace health and safety.
There are many OHS professionals who know that an effective health and safety management system, well trained supervision, and accountability of all stakeholders at a construction site is more effective than threat of crippling fines or jail. The Vixman case reminds us that improving a commitment to prevention, can literally save a life.
I believe it is time for the construction industry in Ontario to call for significant review of the OHS prosecution mentality of the MOL and use alternative dispute resolution as a centerpiece of safety on construction projects in Ontario.