No jail time for supervisor after double fatality

Court rules $30,000 fine and probation sufficient for OHSA violations that led to workers’ deaths

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 Ontario Health and Safety Act (OHSA) in the deaths of two construction workers.

Pasquale Di Franco was a supervisor on a condominium project on the Toronto waterfront in 2002. On April 26, 2002, wall forms on the 16th floor gave way while concrete was being poured into them. Three workers nearby jumped onto a platform over an elevator shaft to try to prop up the forms and prevent the wall from falling over. 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 elevator shaft.

Di Franco failed to have the formwork inspected by a professional engineer and he had ordered the platform to be made from materials that couldn’t support the weight of the three workers or the cement, the Ontario Court of Justice ruled. Di Franco, along with two corporations involved in the construction site, was charged under the OHSA. Di Franco pled guilty to the charges on Nov. 25, 2005, and was fined $30,000, received one year of probation during which he had to report regularly to a probation officer and was required to take educational courses on workplace safety. The two corporations were fined $300,000 and $280,000, respectively.

Ministry of Labour sought jail time

The ministry appealed the trial court’s decision, claiming Di Franco should have received jail time. It argued strong sentences such as imprisonment were important to provide a deterrent against serious breaches of the OHSA that lead to serious injury or death.

The court found jail time wasn’t a common punishment for this type of safety violation, even in serious circumstances. It found “among the many thousands of prosecutions under the OHSA,” there were less than two dozen that resulted in imprisonment of an individual and they were usually for “conduct that was wilful 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.

The court also felt sentencing Di Franco to imprisonment six years after the incident when he had already completed his original sentence and had moved to make amends would be unfair. It said jail time was not the only appropriate sentence for the offence and dismissed the ministry’s appeal.

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

Aggressive pursuit of harsh punishment for safety violations

Though jail time is not a common sentence for OHSA procedural violations, it appears the Ontario Ministry of Labour is requesting it more frequently for cases where serious injury or death results, said Norm Keith, a labour lawyer in Gowling Lafleur Henderson LLP’s Toronto office and Di Franco’s defense counsel. It’s something companies need to be aware of or potentially face severe consequences in the event of a serious workplace accident.

“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 Ministry of Labour’s argument that the supervisor, Di Franco, admitted his failure to comply with safety standards which resulted in two deaths should be enough to warrant imprisonment regardless of other factors shows it’s sending a message to employers that it’s coming after serious health and safety violators. However, this “old theory of deterrence” isn’t the best way to ensure employers comply with safety standards, said Keith.

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

“More should be spent on educating workers and employers on legislation and procedures and offering more rewards for employers who 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. Getting compliance advice from legal professionals can save a lot of trouble and lessen the chances of facing aggressive prosecution in the wake of a serious incident, Keith said.

“The Ministry of Labour is playing hardball and they’re very serious about this,” Keith said.

For more information see:

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

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