In workplace safety, adherence to the Ontario Occupational Health and Safety Act (OHSA) is paramount. Welcome to the third blog in our OHSA series. Discover how previous regulatory convictions impact sentencing for new OHSA violations. Read our previous blogs here and here.
Convictions for violations of Ontario's Occupational Health and Safety Act (OHSA) frequently result in significant fines for both corporate entities and individuals. Furthermore, individual defendants may face incarceration if the breaches in question involve significant aggravating factors.
However, when a defendant is convicted under the OHSA, how do courts determine the appropriate fine or whether jail time is warranted? Sections 66(1) and (2) of the OHSA grant courts wide discretion in deciding the extent of fines to impose (if any) and when incarceration is justified.
Thus, akin to criminal law, courts follow the overarching sentencing principle of proportionality as delineated by common law for OHSA convictions. However, they adopt a tailored approach specifically designed for the OHSA when determining sentences, guided by established case law outlining various mitigating and aggravating factors.
Previous Regulatory Violations
In addition to the sentencing considerations established by the courts, section 15 of the Regulatory Modernization Act, 2007 (RMA) confers statutory authority upon courts to consider any prior regulatory convictions when determining appropriate sentences for OHSA convictions.
The wording of section 15(1) is pivotal to sentencing and reads as follows:
"This section applies when a person who is convicted of an offence has previously been convicted of an offence under the same or another Act."
This provision enables courts to weigh convictions under any provincial regulatory regime when making sentencing determinations. There are many provincial statutes which have such offence provisions including, but not limited, to the Technical Safety and Standards Act, and the Environmental Protection Act.
Significantly, case law in this area is limited. In the context of OHSA convictions, section 15 of the RMA has typically been invoked to underscore multiple previous OHSA convictions when determining sentences for the current OHSA conviction.
However, in an unpublished decision, the court in R. v. T. Lootawan and A. Haniff, 2014, OCJ [Lootawan], imposed a sentence of 45 days in jail and a $2,000 fine on an individual defendant. In justifying the sentence, the court utilized its authority under section 15 of the RMA to consider the defendant's six prior convictions under the Environmental Protection Act as a significant aggravating factor.
Notably, the court in Lootawan remarked:
"More significant than her outstanding fines is her pattern of detrimental behaviour, which demonstrates a serious disregard for public welfare statutes and the repercussions of her actions."
Conclusion
Lootawan serves as a stern reminder to Ontario employers subject to the OHSA (which encompasses most employers). Courts typically take previous regulatory history into account when making sentencing decisions. In Lootawan, the court also recognized that section 15(1) of the RMA reinforces their authority to consider convictions under any provincial regulatory framework when issuing sentences for OHSA convictions.
These considerations underscore the importance for employers in Ontario to seek guidance from qualified employment counsel before and during any operations falling under the jurisdiction of the OHSA, particularly if they or their associates have prior convictions for provincial offences.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.