Individuals targeted under OHS

More jail terms for health and safety violations in Ontario
By Shannon Klie
|Canadian HR Reporter|Last Updated: 03/08/2007

In the early hours of Feb. 7, 2006, a carbon monoxide leak in a Toronto Transit Commission (TTC) tunnel near the Eglinton subway station poisoned eight maintenance workers. All workers involved survived the incident.

Two of the maintenance workers were later diagnosed with severe psychological, emotional and physical disabilities and haven’t been able to work since the incident. A third worker was on sick leave for several months.

The Ontario Ministry of Labour laid 11 charges against the TTC, Warren Bartram, TTC general superintendent of subway track and structure, and Jose Barros, a TTC foreman, for failing to ensure safety procedures and devices were in place. The case was scheduled to go to court on March 8, but rulings weren’t available at press time.

This case is an example of the growing trend of occupational health and safety charges to be levied against individuals as well as organizations.

“For the last several decades, the Ministry of Labour in Ontario and other regulators in other jurisdictions have often added an individual defendant to a corporate defendant’s charge,” said Norm Keith, a lawyer with Gowlings in Toronto who specializes in occupational health and safety. In addition, the ministry has been less inclined to drop a charge against an individual when the organization pleads guilty.

“I’m seeing a more aggressive prosecution of individuals in their own right, not as an afterthought or as a bargaining chip to encourage the corporation to plead guilty,” said Keith.

The TTC case might also serve as an example of what can happen when the people who direct work aren’t properly trained in health and safety procedures, said Yvonne O’Reilly, a Toronto-based occupational health and safety consultant.

“The person who actually ends up doing the work is maybe not the one you thought would have that responsibility and therefore, through some gap, they haven’t received the training that’s needed to protect the people that they’re now responsible for. A lot of organizations don’t think about lead hands and foremen and acting supervisors,” she said. “It leaves them vulnerable as an organization and ultimately leaves the workers vulnerable.”

Another trend Keith has noticed is that the Ontario Ministry of Labour is increasingly imposing jail terms for occupational health and safety violations. Individuals found guilty of violations can be fined a maximum of $25,000 and sentenced to up to 12 months in jail.

According to the Ontario Ministry of Labour, there were seven cases of jail time from 1988 to 2004. But in the past two years alone, there have been three more instances.

The reason for the increase might be a reaction to lack of action under Criminal Code amendments that make it easier to charge a corporation, senior directors and individuals for criminal negligence leading to a workplace injury or death. Since Bill C-45 came into effect in 2004, there have only been two charges, one of which was dropped, while the other is still before the courts.

“Regulators may be frustrated that the police and Crown attorneys aren’t doing more to enforce that new Criminal Code duty,” said Keith. “They might be saying, ‘Look, if the police aren’t going to do (something) about this, then we have to use the (health and safety) sections dealing with individual liability and more serious penalties, like jail,’” said Keith.

The changes to the Criminal Code under Bill C-45 have also widened the definition of who can be held liable, said Maureen Shaw, president and CEO of the Industrial Accident Prevention Association, a Mississauga, Ont.-based health and safety training organization.

“It also impacts anyone who has the responsibility or the authority to direct work. That means that your supervisor, your lead hand, another employee who is working beside an employee, now has a legal responsibility, never mind a moral responsibility, to ensure that the work is undertaken safely,” she said.

While harsher penalties for health and safety violations might act as a deterrent, Keith doesn’t think it’s the best way to go.

“The Ministry of Labour is more frequently asking for jail for what is not a crime, but a regulatory offence,” he said. “I guess the theory is ‘We’ll hit you harder with a bigger stick and that will get your attention.’”

With fines and jail time increasing over the past few years and little change in the number of injuries or deaths, Keith said this strategy isn’t working.

However, when all else fails, regulators have to enforce the law, said Shaw.

“We’re likely to see more people being given jail time because it is allowed in the act and we need to be saying to people in a real way that blatantly and flagrantly not ensuring that workplaces are safe for workers will not be tolerated in our society,” she said. “Sometimes the stick is the only thing that people understand.”

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