Bosses can go to jail for safety violations
By Jeff Thorne
Upon conviction of an offense, Occupational Health and Safety legislation in Canada provides for a range of penalties that include tickets, monetary fines and/or jail time. For truly egregious behaviours, the law provides for prosecution under the Criminal Code of Canada, which provides for lengthy prison time as well as unlimited fine amounts. In the past, even though the law provided for jail time, the consequences for conviction under OHS offenses were usually limited to monetary penalties. However, the law can be likened to that of an organism, in that it tends to change over time. It would appear that a time of change is upon us.
By Jeff Thorne
Recent convictions for OHS offenses that have involved illness, critical injury and fatalities, have shown that there is an increasing willingness on the part of the courts to include jail time as part of the punishment for responsible parties. Nationally, in the last couple of years, numerous company supervisors have been sentenced to jail time for cases involving worker fatalities and the lack of adequate protective measures and training.
The crackdown may be related to a bad trend in recent workplace fatality statistics, particularly in the construction industry. According to a 2013 report by the Association of Compensation Boards of Canada, workplace fatalities in the Canadian construction sector went from 184 in 2011 to 211 in 2012 and up to 221 in 2013 – a steady rise. In all other sectors the fatality numbers either declined over the same period or fluctuated around an average number. Nothing attracts the attention of the courts and the various labour authorities like deaths.
More recently in Ontario, two corporate directors of a furniture manufacturer and retailer were sentenced to 25 days in jail for failing to provide the basic minimum standards for fall protection. In this case, a worker fell to his death from an inappropriately modified, unguarded elevated platform. The worker had not been provided with any sort of personal fall protection equipment or training in the job-specific hazards. In Quebec, a worker was run over and killed by a backhoe without brakes that was driven by his employer. That case led to a prosecution under the Criminal Code and resulted in a two-year sentence for the employer. It should also be noted that prosecutions under other laws may have a similar result as well.
In the last few years there have been company directors sentenced to jail time under the Employment Standards Act (Ontario), for repeatedly ignoring orders to pay workers wages owed. In one case, the company director was ordered to pay wages owed, fined $15,000 and sentenced to 90 days in jail.
These examples may be interpreted as a signal that the courts are increasingly unwilling to tolerate blatant breaches of the rules and standards that circumscribe minimally acceptable behaviours in our society. While in the past, monetary fines were seen as sufficient to deter others from similar lapses or failures within their internal responsibility system, it seems that the pattern of companies continuing to ignore the laws of our society must be met with a greater deterrent. Thus, courts seem to be resorting to more forceful methods of getting the message out to senior corporate executives. Health and safety legislation demands due diligence and employers and supervisors that ignore this mandate risk more than just money. They might possibly risk their personal freedom.
Jeff Thorne is manager of training and consulting at Occupational Safety Group.