By Adrian Miedema
A recent Ontario appeal decision is a reminder that courts in Occupational Health and Safety Act prosecutions can award fines higher than even the Ministry of Labour prosecutor requests.
In this unusual case, both a trial Justice of the Peace and appeal judge imposed a fine that was substantially higher than what the MOL prosecutor wanted.
After a six-day trial, the defendant, Matcor Automotive, was found guilty on three charges under the OHSA. The trial Justice of the Peace fined the company a total of $270,000, even though the MOL prosecutor at trial had requested a fine in the range of only $175,000 to $225,000.
The company appealed the amount of the fine, but did not appeal the convictions. On the appeal, the company argued that the fine was not proportionate, that the trial justice placed undue emphasis on a prior conviction against the company under the OHSA, and that the fine was outside of the acceptable range. The appeal judge rejected all of those arguments because:
•the employer was a “substantial corporation” (two facilities with a total of 770 people) that was “within a broader group of companies”
•the employer had been found guilty on three charges under the OHSA
•it was proper to consider the prior conviction (which was in 2004)
•the harm to the injured worker was “devastating” — he was rendered a paraplegic when a robot on which he was doing a “quick fix” pressed against him on his back. The company’s practice was not to lock out/tag out robots when doing a “quick fix.”
Interestingly, on the appeal, the MOL prosecutor and the defence counsel actually agreed that $180,000 would be an appropriate amount for the fine. The appeal judge effectively rejected that agreement, finding that the $270,000 fine was not “unfit”.
The appeal judge decided that a fine of $270,000 “fell within the appropriate range.” The appeal was dismissed.
The case illustrates the point that, particularly in cases of serious injury to a worker that “offends” the court, there is always a risk that the court will impose a fine that is greater than the amount that the MOL prosecutor wanted.
Adrian Miedema is a partner in the Toronto Employment Group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts. For more information, visit www.dentons.com or www.occupationalhealthandsafetylaw.com.