ONCA Leaves Door Open for Jail for Negligent Employers
A tragic case of an employee who died in 2013 after falling from an elevated order picker (like a forklift, but controlled while walking) has led to the Ontario Court of Appeal stating that moral blameworthiness may lead to more severe sentences for employers who act negligently in offences under the provinces Occupational Health and Safety Act (“the Act”).
The events leading to the employee’s death occurred on January 16, 2013. The employee worked at a furniture warehouse and was standing on its platform in an elevated position, about 12 feet off the ground. The employee fell and died at the scene.
It was later revealed that the employee was known by his employer to be epileptic (he had fainted twice previously at work). However, he was still assigned to work on the order picker. On that tragic day the employee was standing on it, was not wearing any safety gear (in fact he was wearing slick dress shoes). Neither the employee nor his co-workers had received any health or safety training.
Charges were laid on the employer and two of its directors by under the Act. All three defendants plead guilty.
The original sentence
The sentencing judge imposed a fine on the employer and imposed jail sentences of 25 days on each of the directors. All three defendants appealed. A provincial offences appeal court judge (the “appeal judge”) allowed the appeals, reducing the employer’s fine and imposed fines of $15,000 on each of the directors. The appeal judge stated, “[r]egulatory offences are concerned with attaining public policy objectives as opposed to punishing moral blameworthiness.” The appeal judge also noted that in any of the situations where a regulatory offence led to jail time, it was because of willful acts as opposed to negligent ones.
Before the Court of Appeal
The case ended up before the Court of Appeal after the crown appealed, seeking a restoration of the sentencing judge’s ruling.
In this case, the court dismissed the crown’s request for jailtime to be handed down to the directors. However, its decision left the door open for such a sentence to be imposed in future cases. The court wrote,
“To be clear, the relevance of moral blameworthiness in regulatory sentencing does not mean that sentences should be reduced where higher levels of moral blameworthiness are not present. After all, by design, most regulatory offences can be committed by mere negligence, and some are absolute liability offences imposing punishment even in the absence of moral blameworthiness. The point is that where the moral blameworthiness of a particular offender increases, so too can the penalty imposed.”
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