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Alberta OHS judgment sparks creative sentencing debate

By Linda Johnson
| www.cos-mag.com

A recent OHS-related ruling in Alberta has renewed calls for more alternative or creative sentencing for safety violations, and at least one Ontario lawyer is urging his province to follow in Alberta’s footsteps.

David Law, a partner at Gowling Lafleur Henderson LLP’s Ottawa office who has practiced occupational safety law for 24 years, pointed to a recent case in Alberta in which a judge ordered a company to pay $85,000 to a provincial construction safety association for the creation of safety training programs for employers and workers.

While job safety is enforced aggressively in Ontario and judges often hand down huge fines, Law said, the Ministry of Labour has refused to formally allocate fines to worksite safety programs. In sentencing negotiations in his own cases, he added, he has often sought to have the court consider ordering fines be paid to community job safety initiatives.

“I’ve tried to persuade Ontario Crowns to agree to an alternative sentence where the money gets poured into exactly what we’re all dealing with — workplace safety. And they just won’t,” he said, adding Crown attorneys are following Ontario government policy.

“They work under a policy that is antiquated … the Ministry of Labour in Ontario has been very clear that they have no authority to agree to any such sentence, and they will oppose such a sentence in cases where a company is convicted,” he said.

By targeting the money to specific safety programs, instead of putting it into general revenue, the ministry would help make the connection between the offence and the fine, said Law, who teaches occupational safety law at Queen’s University.

“Let’s have an approach to fines that says the money will be reinvested back into the purpose of the law — which is to train people on safe practice and educate people on their rights in the workplace,” he said.

In July, an Alberta court found that the failure of Agra Foundations Ltd. to conduct a worksite assessment to identify possible hazards caused a worker to lose a leg. The worker was helping repair a hammer line in a crane when his foot went through an open door in the machine, pulling him into the crane and crushing his leg.

The court ordered Agra to pay a fine of $5,000, plus a 15 per cent victim surcharge, and to give $85,000 to the Alberta Construction Safety Association — an independent non-profit organization — to create and implement a hazard assessment program. The program would include two courses: one aimed at training supervisors, the other for supervisors to train workers. 

In her judgment, Judge H.A. Lamoureux said the fines must be “sufficient to be felt by the employer and … sufficient to serve as a warning to others that infractions of the legislation will be costly.”

The judgment, Law said, offers an example of a different and more effective kind of sentencing agreement. “It was a responsible [agreement] that has a much longer term benefit.”

Alberta courts began directing fines to specific safety programs five years ago after the Ministry of Employment and Immigration amended the Occupational Health and Safety Act to allow payments to third parties that promote health and safety, said Barrie Harrison, a spokesperson for Alberta Occupational Health and Safety.

He agreed with Law that alternative, or creative, sentencing produces positive and tangible results because it draws a clear connection between the incident and the consequence. While there’s nothing wrong with putting fines into provincial coffers, Harrison said, once it’s there, that money can be used for anything, from health care to paving streets.

“With creative sentencing, you have that direct benefit from something very tragic. The victims or families of victims can see what came of that incident,” he said. “Sometimes, there will be bursaries, or colleges will have programs, in the name of the person who was injured or killed. So, there’s a benefit they can see and deservedly so.”

The program has been so successful, Harrison said, that the majority of Alberta’s safety breach cases now involve a creative sentence. Last year, for example, there were 11 convictions, and only two did not have a creative sentence. In that year, penalties totalled $1.7 million, and almost $1.3 went to creative sentences.

While judges make the final decision, he added, the program is designed to allow victims or their families to have as much say as possible in how the money is spent.

For example, in one of the earliest cases of creative sentencing, a company agreed to donate more than $400,000 in land to create an emergency runway for planes unable to land at Edmonton International Airport. The victim in the case — a 14-year-old boy who died when he was crushed by a box liner in a truck — had loved airplanes and flying.

“Sometimes, you can have great tie-ins that have some sort of meaning to the person who was seriously injured or killed,” Harrison said.

Politicians were prompted to allow donations to third parties, in part, because victims and their families in Alberta do not have direct access to the victim resource fund, he said. In most provinces, convicted companies are charged a victim surcharge, an extra amount calculated as a percentage of the fine. That amount goes into a pool that victims and families can use to help them pay for supports such as rehabilitation, training and equipment.

In Alberta, the 15 per cent victim surcharge is administered by Alberta Justice.

“This is another way for us to deal with that. We’re saying that, if you can’t have access to that funding program, how else can we come up with something positive from something tragic?” he said.

Since its creation, the program has undergone some changes, Harrison said. Early on, courts found that some companies were disregarding the orders and not paying the safety associations. Within the last year, however, the law has been changed, and companies are now required to post a bond to the court before sentencing to ensure payment.

The Ontario Ministry of Labour said there is no authority under the province’s Occupational Health and Safety Act to allow alternative sentencing. The act provides only for fines and/or imprisonment.

“Our prosecutions are in the public interest, and we try to effect specific and general deterrence. The position we take in any particular prosecution, including the position on sentencing, depends on the circumstances of each case,” said Matt Blajer, spokesperson for the Ontario Ministry of Labour.

He could not comment on whether the newly elected Liberal government might take a different position to alternative sentencing.

Law said alternative sentencing does not diminish punishment or deterrence. In the case against Agra, the company still had to pay a large fine. Other companies, moreover, will take notice and implement measures to try to ensure they don’t have to pay a similar fee.

“[Alternative sentencing] is just another benefit. We get punishment, deterrence and we get an investment in the mission of the law, which is, after all, to protect people at work,” he said.

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