Ontario leading the charge to deter misbehaviour
A father of two, with another on the way, John Hill had been working for Roofing Medics just a few months when he fell six metres from a ladder in 2011. Landing on a fence, he was rushed to the hospital — but died shortly thereafter.
It was a tragedy that could have been averted if Hill had attached the lanyard of his harness properly — employees had been given training on fall protection just one week before.
Paul Markewycz, owner and operator of Brampton, Ont.-based Roofing Medics, faced a fine and imprisonment for the workplace accident. He was fined $50,000 and faced 15 days in jail. Historically, jail sentences are the exception, not the norm, for these types of offences, said Justice C. Ann Nelson of the Ontario Court of Justice in her Nov. 21, 2013, ruling.
"The major reason a jail sentence is necessary for Mr. Markewycz is to deter others from ignoring the legislated fall protection requirements. Others in the industry must pause to consider that each and every time they embark on a roofing project, they may go to jail if one of their employees does not use fall protection gear… If workers continue to fall off roofs in contravention of fall arrest regulations, supervisors can expect that jail sentences will be longer and may well become the norm."
The roofing company was guilty of two offences under the Occupational Health and Safety Act (OHSA):
•failing to comply with the prescribed regulation that required a fall arrest system be in place
•failing to notify and send a report to the director regarding the death within 48 hours.
In addition, the owner was guilty in his capacity as supervisor, failing to ensure his workers used a fall arrest system and furnishing an inspector with false information.
The case was more serious than most, as the owner lied to police and the Ministry of Labour and he failed to file a written report of the accident, according to Ryan Conlin, a partner at Stringer LLP in Toronto.
"If someone behaved egregiously during investigation, lied to investigators, obstructed justice, things along those lines, then it tips the balance towards a jail term for sure."
The paramount consideration in sentencing for offences under the OHSA is deterrence, said Nelson, citing the 1982 Ontario Court of Appeal case R. v. Cotton Felts Ltd. But while the principal is easy to articulate, its application can be challenging.
"The case law reflects a wide and disparate sentencing range… It is rare that jail sentences have been imposed for individual offenders," , she said.
Counsel for the Crown highlighted why deterrence is so important by providing statistics showing how deadly the roofing industry can be. The majority of lost-time injuries in the roofing sector are due to falls, and 41 per cent of all deaths at construction sites in 2011 were due to falls.
"Roofers keep falling off roofs despite all efforts of the ministry to educate and prosecute these types of offences," said Nelson. "This reality highlights the need for the court to fashion a sentence for Mr. Markewycz and Roofing Medics which will deter both defendants and, more importantly, other supervisors and roofing companies from failing to protect their employees. The penalty must not be such that it can simply be considered part of the cost of doing business and likened to a licensing fee."
The owner behaved particularly badly with his deceptions, according to Karen Fields, a partner at Crawford Chondon & Partners in Brampton, Ont.
"All of those things sent a message to the court that this was somebody that needed a little more specific deterrent and it also wanted to send a message that it wasn’t OK to engage in these kinds of behaviours and then a fine would make all your problems go away… still, jail time is reserved for those worst-case scenarios."
Jail terms are rare because the fines are high — significantly higher than other areas of the law, and the courts have always thought that was the deterrent factor, she said. For a corporation in Ontario, the maximum is up to $500,000 per conviction — and it could be convicted on two or three counts. For individuals, it can be up to $25,000 and 12 months in jail.
"You didn’t see a lot of (jail time sentences) a few years ago but you are starting to see more now," said Fields, adding Ontario is the only jurisdiction thus far that has jailed people in the OHS realm (aside from a B.C. case involving workers’ compensation).
A recent case in the Ontario Court of Justice imposed jail time of 45 days, to be served continuously — not intermittently, as is common. The case involved supervisor Teisha Lootawan of J.R. Contracting Property Services, a Woodbridge, Ont.-based garbage removal company. It was found guilty of seven charges under the OHSA after a worker took a serious fall from a roof and ended up paralyzed.
Lootawan had several prior convictions under the Provincial Offences Act and had been to jail intermittently. She had also faced substantial fines that had largely gone unpaid. In applying the Regulatory Modernization Act, justice of the peace Mary Ross Hendriks considered Lootawan’s record in totality.
The Regulatory Modernization Act allows a court to consider convictions under other provincial regulatory statutes, according to Evan Campbell, a lawyer at Miller Thomson in Guelph, Ont.
"If an individual has been charged multiple times with fines, or a corporation, that is an aggravating factor which would warrant a tougher sentence."
This is one of the first reported examples where a court actually used the Regulatory Modernization Act to inform its judgment in an OHS case, said Conlin.
"There’s no question that where a defendant has prior record of convictions either under the Occupational Health and Safety Act or under other provincial offences legislation… that will increase the penalty that will be imposed," he said.
As for potential criminal charges, the attitude towards OHS convictions has been there’s no required proof of intent, unlike a criminal case, said Conlin.
Criminal charges may not be laid if authorities believe the conduct of the accused was not serious enough to warrant a criminal prosecution or there was insufficient evidence to prove it beyond a reasonable doubt. And if the police don’t investigate and lay charges, the Ministry of Labour doesn’t have jurisdiction to lay criminal charges, he said.
When it comes to Bill C-45, "those cases tend to be where people have gone so far away from what the norm would be thought to have happened that it results in negligence," said Fields.
But the question remains: Are tougher sentences, higher fines or jail terms having the desired effect?
"The jury’s still out on whether severely penalizing corporations and imposing jail terms will actually reduce workplace accidents," said Campbell. "One (question) is, as opposed to the government putting extensive resources into enforcement, maybe it would be better spent on the education of employers and supervisors on having a safe workplace."
