No jail time in double workplace fatality (Legal view)

But vigorous prosecution shows Ontario is ‘playing hardball,’ says lawyer

The Ontario Superior Court of Justice has dismissed a request from the Ontario Ministry of Labour to imprison a construction supervisor who pled guilty to violating the province’s health and safety legislation in the deaths of two construction workers.

Pasquale Di Franco was a supervisor on a Toronto condominium project in 2002. On April 26, wall forms on the 16th floor gave way while concrete was being poured. Three workers jumped onto a platform over an elevator shaft to try to prop up the forms and prevent the wall from falling. However, the cement spilled onto the platform, which collapsed. One worker was able to jump to safety but the other two fell to their deaths in the shaft.

Di Franco failed to have the formwork inspected by a professional engineer before the cement was poured and ordered the platform over the shaft to be made from materials that couldn’t support the weight of the three workers or the cement. After negotiations, Di Franco pled guilty to the charges on Nov. 25, 2005, and was fined $30,000. He also received one year of probation during which he had to take educational courses on workplace safety. The two corporations were fined $300,000 and $280,000, respectively.

The ministry appealed the decision, claiming Di Franco should have received jail time. It argued strong sentences such as imprisonment were important to provide a deterrent.

The court found jail time wasn’t a common punishment for this type of health and safety violation, even in serious circumstances. It found “among the many thousands of prosecutions under the Occupational Health and Safety Act (OHSA),” there were less than two dozen that resulted in imprisonment of an individual and they were usually for “conduct that was willful as opposed to merely negligent.”

Di Franco, the court said, demonstrated remorse by pleading guilty and was prepared to accept responsibility. He had 25 years as “a responsible employee” with no previous incidents. In the time since the workers’ deaths, he continued to work in construction without any further problems.

Jailing Di Franco six years after the incident when he had already completed his probation and had moved to make amends would be unfair, the court said.

“Imprisonment, while it is clearly available in exceptional cases, is meant to be a sanction that is seldom employed,” the court said.

The Ontario Ministry of Labour appears to be asking for jail time more frequently for cases where serious injury or deaths result, said Norm Keith, a labour lawyer in Gowling Lafleur Henderson’s Toronto office and Di Franco’s defence counsel.

“If I’m an employer or manager, I should be on notice that, from a societal expectation, when something is not managed well in the workplace, there’s a heightened risk of punishment,” Keith said.

The department argued that the fact there was a double fatality where the supervisor, Di Franco, admitted his failure to comply with safety standards should be enough to warrant imprisonment regardless of the mitigating factors. It’s sending a message to employers that they’re coming after serious health and safety violators. However, Keith said the “old theory of deterrence” isn’t the best way to ensure employers comply with safety standards.

Setting better standards, offering better education and providing motivation would be more effective than threats of harsh punishment, he said. He used Quebec as an example, where safety courses are mandatory for every supervisor on a construction site. These courses are available but not required in Ontario. He also said there should be more rewards to motivate employers to ensure workplaces are safe.

“More should be spent on educating workers and employers on legislation and procedures and more rewards for employers (that) comply,” said Keith. “It’s better than throwing them in jail.”

Employers should also focus on prevention as it’s cheaper and more proactive to prevent an accident than to deal with its effects, he said. Though the labour department lost its bid to have Di Franco imprisoned, Keith said the province is “playing hardball” and will likely continue to seek harsh sanctions.

For more information see:

R. v. Di Franco, 2008 CarswellOnt 1244 (Ont. S.C.J.).

Jeffrey R. Smith is editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, visit employmentlawtoday.com.

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