By Maurice Dransfeld
For the very first time in Nova Scotia, a business owner was sentenced to jail time for charges under the provincial Occupational Health and Safety Act.
In May, the Nova Scotia Provincial Court dealt with the case of Joseph Isnor who was charged on three counts under the act for incidents that began in 2010. Isnor repeatedly failed to implement and enforce applicable fall protection rules on work sites under his supervision while operating two roofing companies called Roof Masters and Union Roofing.
Isnor was a repeat offender who had previously failed to pay fines and ignored sentencing orders. On May 24, he was sentenced to 15 days in jail for repeat offences under the act. Isnor’s prison sentence was made up of five-day sentences for each of the three counts. These sentences are to be served over the course of consecutive weekends and while Isnor is entitled to keep working, he is required to notify the Department of Labour and Advanced Education prior to him or his crew members working at heights more than 3 metres.
This decision affirms that the possibility of jail time transcends the realm of criminal law and into that of OHS.
Jail time is more likely to be appropriate where there is a prior record of convictions; difficult attitude; lack of remorse; deliberate or willful action; a serious offence; and quasi-criminal elements to the offence. On the other hand, jail time is less likely where there is a past history of work without incident; demonstration of remorse; an adverse impact on the guilty party; positive work history after the incident; willingness to take education courses on safety; and strong family support.
In explaining why jail time was imposed, Alex Keavenney, the Crown attorney, implied that there needed to be more severe sanctions imposed against Isnor with previous sanctions proving to be futile, such as the fines Isnor refused to pay. There appeared to be a strong argument that any sanction not involving jail time would be insufficient to ensure Isnor’s future compliance with the act. A jail sentence sends a strong message to incorrigible safety offenders.
Isnor’s disregard for previous sanctions may also have been indicative of other aggravating factors such as a difficult attitude, lack of remorse and deliberate and wilful non-compliance with the act.
An important take away from the Isnor decision is that cumulative conduct is taken into account when a sentence or order is imposed. In isolation, the safety offences committed by Isnor’s businesses would be unlikely to attract a sentence as severe as imprisonment.
The Nova Scotia Department of Labour and Advanced Education noted the jail sentence imposed against Isnor is a sign that an increasing focus is being put on repeat offenders and dangerous cases. Following the decision, the department also stated it is being more strategic in regards to which employers are targeted for inspection.
Interestingly, the decision was rendered at a time when Nova Scotia labour investigators were doing a blitz to ensure construction sites across the province had proper fall protection equipment and procedures in place. Perhaps the timing of the decision serves as an example of a general attitude on the part of OHS regulators and courts who may be more willing to impose stricter sanctions for offences going forward.
The Isnor decision is a warning to employers that any sanctions received under OHS legislation should be complied with and not taken lightly. Clearly, courts will not take kindly to workplace safety offenders that deliberately disregard penalties imposed against them. The Isnor decision can also be taken as a warning that there may be severe consequences, including jail time, for repeated workplace safety infractions. Furthermore, employers should be informed of the aforementioned factors in making decisions related to workplace safety. While some these factors will be viewed in a contextual manner by courts, it appears that courts will generally be less inclined to impose jail time for workplace safety infractions where the offender has displayed a commitment towards workplace safety outside of the incident in question.
It should be noted the Isnor decision appears to be informed by general principles that relate to jail time in the OHS context and which also apply across Canada. Isnor’s sentence appears to be consistent with existing OHS law in jurisdictions outside of Nova Scotia and, therefore, employers across Canada should be forewarned that courts in their jurisdiction may have the same authority to impose jail time where workplace safety offenders repeatedly fail to meet safety requirements and aggravating factors are present.
By way of example, in a 2014 OHS decision from Ontario, the court determined jail time would be the only effective deterrent for an offender who had four prior convictions under different regulatory legislation and had almost entirely avoided the fines that were levied.
The Isnor decision has undoubtedly affirmed jail time as a very real and substantial risk for employers in the context of OHS, and jail time has been recognized as a necessary deterrent in certain cases involving a repeat offender.
[em]This article originally appeared in the August/September 2016 issue of COS.
Maurice Dransfeld is a lawyer in the Edmonton office of McLennan Ross who provides advice to employers on a variety of labour and employment issues. He can be reached at firstname.lastname@example.org or (780) 482-9223, or visit www.mross.com for more information.