Law firm releases study on the price of taking occupational health and safety charges to court
An OHS conviction fine is more expensive if negotiated with the Ontario Ministry of Labour than if the court decides the fine.
A study released by Fraser Milner Casgrain’s occupational health and safety law practice found more than two-thirds of Ontario companies charged under the Occupational Health and Safety Act plead guilty.
Those who plead guilty and allow the court to set their fines pay an average of 40 per cent less than those who plead guilty and accept the Ministry’s proposed fine.
“In other words you’re paying a premium to negotiate the fine with the Ministry rather than getting a discount,” said Adrian Miedema, partner at Fraser Milner Casgrain.
The average fine for corporations that pleaded guilty and accepted the Ministry fine was $42,871.
Corporations that pleaded guilty and asked the court to decide the amount of the fine paid an average of $23,542.
“I think the reality is that justices of the peace…. and judges when they sit on these cases, they just think that the fines the Ministry is proposing are too high and so they tend to award lower fines.”
The study, available on the firm’s OHS blog www.occupationalhealthandsafetylaw.com, is pulled from data from charges settled in an 18-month period from January 2009 to June 2010. The charges involved 863 defendants, 592 corporations and 271 individuals, charged with offences under the act.
The law firm got the information through a Freedom of Information Act request. The Ministry of Labour was not prepared to comment on the study, released May 16, before press time on May 18.
Fighting the charges
The study found 72 per cent of all companies charged with an OHS offence end up being found guilty.
“I think for safety professionals one of the things that’s significant is that the vast majority of employers that are charged are found guilty,” said Miedema.
Few companies choose not to plead guilty and instead fight the OHS charges against them through to a trial. Only six per cent of corporations went that far in the court process, according to the study.
“One is that maybe some employers are being overly risk-adverse and just pleading guilty and not fighting cases they could fight,” he said. “I think it probably also reflects a lot of companies’ — and maybe a lot of lawyers’ — perceptions that these charges are difficult to beat.
“I think lawyers and companies, when an accident happens and somebody’s injured, I think there’s probably a general assumption that people take to it that… somebody was injured, an accident happened, there must have been some sort of violation and we might as well plead guilty and pay a fine and get this over with,” he said.
The process of seeing a charge through to trial can be a long one.
The charges first go to the Ontario Court of Justice. After a first court appearance the matter is generally put over for a few months. In the meantime, the ministry provides disclosure to the defense, including the case file and all the evidence that has been found on the incident including the inspectors report and interviews with any witnesses.
If the employer doesn’t want to plead guilty and settle, then the court is advised and a date is set for a trial.
The time required to see a case through the court process may be part of the reason few fight charges, said Miedema.
“I think… in court cases that’s always a consideration, like how much effort and cost am I going have to put into this if I fight it all the way through to a trial,” he said.
Miedema said he thinks another reluctance companies have about going to trial is that they think if they fight the charges, go to trial and lose, the fine will be much higher than if the businesses just settled the case and pleaded guilty.
“I think that’s one of the reasons why a lot of companies don’t want to go to trial because they think ‘Oh, if we go to trial and we lose we’re going to get hammered with this serious fine.’”
If a company decides to go all the way though to trial and is found guilty the charges are about the same as if they had been negotiated with the Ministry, according to the study.
The average fine against corporations that went to trial and were convicted was $44,620. If corporations pleaded guilty and negotiated the fine with the Ministry the average fine was $42,871, or four per cent lower.
But these figures don’t include the costs associated with going to trial, including legal fees and time away from work.
Charges withdrawn
One of the things Miedema found surprising in the data was how many individuals have their charges withdrawn, he said.
The study found 56 per cent of individuals charged with OHS offences have their charges withdrawn. For the vast majority of cases when charges are withdrawn, another party pleaded guilty, he said.
For example, if after an incident the employer pleads guilty, than the ministry withdraws the charge against the individual, he said.
It’s more likely that charges will be withdrawn against individual then against a corporation. In cases when charges are withdrawn against a corporation, it’s usually because another company has pleaded guilty to charges in the same incident, he said.
Most of the time when there is an OHS incident there are charges laid, according to the study.
“The best approach is to avoid charges,” he said. “If there are charges in respect of an accident there’s an 82 per cent probability that somebody is going to be convicted in respect of that accident.”
“I think that just demonstrates how important it is to try to avoid these things in the first place.”
A study released by Fraser Milner Casgrain’s occupational health and safety law practice found more than two-thirds of Ontario companies charged under the Occupational Health and Safety Act plead guilty.
Those who plead guilty and allow the court to set their fines pay an average of 40 per cent less than those who plead guilty and accept the Ministry’s proposed fine.
“In other words you’re paying a premium to negotiate the fine with the Ministry rather than getting a discount,” said Adrian Miedema, partner at Fraser Milner Casgrain.
The average fine for corporations that pleaded guilty and accepted the Ministry fine was $42,871.
Corporations that pleaded guilty and asked the court to decide the amount of the fine paid an average of $23,542.
“I think the reality is that justices of the peace…. and judges when they sit on these cases, they just think that the fines the Ministry is proposing are too high and so they tend to award lower fines.”
The study, available on the firm’s OHS blog www.occupationalhealthandsafetylaw.com, is pulled from data from charges settled in an 18-month period from January 2009 to June 2010. The charges involved 863 defendants, 592 corporations and 271 individuals, charged with offences under the act.
The law firm got the information through a Freedom of Information Act request. The Ministry of Labour was not prepared to comment on the study, released May 16, before press time on May 18.
Fighting the charges
The study found 72 per cent of all companies charged with an OHS offence end up being found guilty.
“I think for safety professionals one of the things that’s significant is that the vast majority of employers that are charged are found guilty,” said Miedema.
Few companies choose not to plead guilty and instead fight the OHS charges against them through to a trial. Only six per cent of corporations went that far in the court process, according to the study.
“One is that maybe some employers are being overly risk-adverse and just pleading guilty and not fighting cases they could fight,” he said. “I think it probably also reflects a lot of companies’ — and maybe a lot of lawyers’ — perceptions that these charges are difficult to beat.
“I think lawyers and companies, when an accident happens and somebody’s injured, I think there’s probably a general assumption that people take to it that… somebody was injured, an accident happened, there must have been some sort of violation and we might as well plead guilty and pay a fine and get this over with,” he said.
The process of seeing a charge through to trial can be a long one.
The charges first go to the Ontario Court of Justice. After a first court appearance the matter is generally put over for a few months. In the meantime, the ministry provides disclosure to the defense, including the case file and all the evidence that has been found on the incident including the inspectors report and interviews with any witnesses.
If the employer doesn’t want to plead guilty and settle, then the court is advised and a date is set for a trial.
The time required to see a case through the court process may be part of the reason few fight charges, said Miedema.
“I think… in court cases that’s always a consideration, like how much effort and cost am I going have to put into this if I fight it all the way through to a trial,” he said.
Miedema said he thinks another reluctance companies have about going to trial is that they think if they fight the charges, go to trial and lose, the fine will be much higher than if the businesses just settled the case and pleaded guilty.
“I think that’s one of the reasons why a lot of companies don’t want to go to trial because they think ‘Oh, if we go to trial and we lose we’re going to get hammered with this serious fine.’”
If a company decides to go all the way though to trial and is found guilty the charges are about the same as if they had been negotiated with the Ministry, according to the study.
The average fine against corporations that went to trial and were convicted was $44,620. If corporations pleaded guilty and negotiated the fine with the Ministry the average fine was $42,871, or four per cent lower.
But these figures don’t include the costs associated with going to trial, including legal fees and time away from work.
Charges withdrawn
One of the things Miedema found surprising in the data was how many individuals have their charges withdrawn, he said.
The study found 56 per cent of individuals charged with OHS offences have their charges withdrawn. For the vast majority of cases when charges are withdrawn, another party pleaded guilty, he said.
For example, if after an incident the employer pleads guilty, than the ministry withdraws the charge against the individual, he said.
It’s more likely that charges will be withdrawn against individual then against a corporation. In cases when charges are withdrawn against a corporation, it’s usually because another company has pleaded guilty to charges in the same incident, he said.
Most of the time when there is an OHS incident there are charges laid, according to the study.
“The best approach is to avoid charges,” he said. “If there are charges in respect of an accident there’s an 82 per cent probability that somebody is going to be convicted in respect of that accident.”
“I think that just demonstrates how important it is to try to avoid these things in the first place.”
