In-Depth Analysis

Harsh Probation Terms + Fines = Creativity: The New Math in OHS Sentencing?

OHS & Workers’ Compensation Advisor

Corporate defendants charged with offences under the Ontario Occupational Health and Safety Act (“OHSA”) have, for decades, with one notable exception, had a single sentencing option upon conviction: a fine.  However, a recent decision of the Ontario Court of Justice departed from the “fines only” approach and has raised the possibility of more “creative” sentences, even potentially harsher ones, in future.

The January 31, 2020, decision in Ontario (Ministry of Labour) v. Vixman Construction Ltd., 2020 ONCJ 64 (CanLII), challenges the traditional sentencing model by imposing probationary terms in addition to a substantial fine after a Company was convicted of two OHSA offences following a fatal workplace accident.  This is only the second time that a corporation has received probation as part of a sentence for a violation of the Ontario OHSA.

The probationary terms imposed, which are discussed in detail below, are novel. They may be seen as daunting – or even harsher than a fine because they impose obligations in addition to a fine in the ordinary range for a tragic fatal accident – as the terms require Vixman Construction to take steps to publicize the offences for which it was convicted along with the lessons learned and steps taken to prevent similar incidents in the future.  In addition to demonstrating to Ontario corporations what “creative” sentencing could look like, the probationary element of the sentence also highlights the difference between sentencing in OHS matters in Ontario and other, more “creative”, jurisdictions such as Nova Scotia and Alberta.   It raises the question of why “creative” sentences aren’t used in Ontario but also raises questions about whether such penalties are actually available under current Ontario law.  This issue of the Advisor discusses the particulars of Vixman Construction, the contrast in sentencing approaches between Canadian jurisdictions, and the questions arising from the probationary terms imposed on Vixman Construction.

Background Facts

Following a trial, Vixman Construction was convicted of two offences under the OHSA in December, 2019.  The charges alleged that, on March 27, 2018, the company failed, as an employer to:

  1. ensure that a fall arrest system was attached by a lifeline or by the lanyard to an independent fixed support meeting the prescribed requirements; and
  2. ensure that a fall arrest system was arranged so that a worker could not hit the ground or an object or level below the work.[1] 

The charges arose after a worker fell, approximately 3.6 metres or 11.5 feet, while installing steel roofing over walkways at Toronto’s Billy Bishop (Toronto City) Airport.  The worker died from blunt impact trauma to the head.

At the time of the incident, the worker was wearing a fall arrest system with a self-retracting lifeline – commonly known as an SRL system.  An SRL system has an anchor point that is, often, mounted overhead of the worker (though some SRL systems permit the anchor point to be mounted horizontally from the worker).  Further, the system, as its name implies, allows the lifeline to extend and retract with the worker’s movements.  The further the worker is from the anchor point, the longer the lifeline that will have been extended and that lifeline is automatically retracted as the worker moves closer to the anchor point.  As the decision describes, the system functions similarly to the seatbelt in an automobile because the system will extend the lifeline with slow and smooth movements but will lock with sharp or abrupt motion.  It is this locking motion that is intended to arrest the fall of a worker.

At the time of the incident, the involved worker was properly wearing the fall arrest system and a safety helmet and the SRL system was appropriate for leading edge work.  However, the SRL system had been choked to a steel vertical column and slipped down the column, pulling the worker through the opening. This, the court determined, meant the system had not been attached to an independent fixed support meeting the prescribed requirements.

The second charge was proven on evidence that no one had calculated the fall clearances – the distance that a worker could fall before striking the ground or an object – in order to properly set up the SRL system.  There was evidence that, at the time of the incident, the involved worker was well over 12 feet away from the anchor point, meaning the SRL system provided him no fall protection at all, given the 11.5 foot distance to the ground.

The court rejected a due diligence defence by Vixman Construction. Those details are not included here given the focus of this article.

The Sentence

The sentencing decision was released January 31, 2020. It appears that, between the convictions and addressing the court for sentencing purposes, Vixman Construction and the Crown were able to reach agreement on the penalty that should be imposed.  It was jointly recommended that a fine of $125,000 (not including the 25% surcharge) was an appropriate penalty in the circumstances and the court was provided with cases in support of that recommendation.  As many readers may know, it is not uncommon for the Crown and defence counsel to jointly submit a proposed sentence both agree would be appropriate, in all of the circumstances of the case, to the court and it is not uncommon for courts to accept these submissions.

The court, however, was not bound to accept a joint submission and the decision sets out that the court had concerns about a “fine only” penalty.   The Justice of the Peace properly advised the parties of his concerns, before imposing sentence, by indicating that he had “serious reservations” about the proposal because the exclusive use of fines may preclude other available sanctions that could align with the “core objective of occupational health and safety legislation itself; to prevent and mitigate harm in the workplace”.  The parties were invited to make submissions regarding a “creative” sentence and, according to the decision, Vixman Construction was receptive to receiving the court’s guidance and direction.

Other than indicating the receptive approach of the defence, the sentencing decision does not detail any other submissions made by the parties.  It does not directly set out the position of the Crown or whether any “creative” suggestions were made by the parties.  Ultimately, the court found that the public would be “shocked” that sentencing options, other than a fine, were ignored on the basis of “Crown preference, procedural bias and historical precedence [sic]”.

As a result, the court modified the jointly-proposed penalty recommended by the parties.  The recommended fine of $125,000 was imposed (split equally between the two offences) but the court went on to place Vixman Construction on probation, for a period of 18 months, pursuant to sections 72(3)(c) and (d) of the Ontario Provincial Offences Act (which sets the procedural rules for the prosecution of offences created by the provincial government – including those under the OHSA).  The probation order contained the statutory terms, part of all probation orders, requiring Vixman Construction not to commit the same or related offences, to appear in court as and when required, and to notify the court of any change in address.  However, the order also contained terms that were specifically crafted for Vixman Construction.  These terms included directions, novel in Ontario sentencing decisions, requiring that:

  1. The President of Vixman Construction or designate report to an identified courthouse for an initial intake appointment with a probation officer and to provide a copy of the probation order to the officer.  This was directed to happen within 14 days.
  2. After the initial reporting, the President or designate report to probation at all times and places as directed by the probation officer or any person authorized by a probation officer to assist with compliance of this order.
  3. Within 30 days, Vixman Construction contact the editor of the Health and Safety Magazine published by the Infrastructure Health and Safety Association ( “IHSA”: a safe work association serving the construction sector amongst others) to inform the editor that the court has ordered Vixman Construction to publicly acknowledge the offence in an article to be featured in the magazine,with specific emphasis on the development of an enhanced fall protection safety talk (“safety talk”) and pre-safety inspection (“PSI”) worksheets necessitating that fall height calculations and the precise technique required to safely anchor at foot level be duly recorded on PSI worksheets prior to the commencement of work.  Vixman Construction is to include the lessons learned from the workplace accident and the remedial actions taken to prevent future harm in the article.  The article is to be dedicated to the memory of the deceased worker.  The final draft of the piece is to be sent by May 1, 2020.
  4. A copy of the article and public acknowledgement with the revamped safety talk and PSI worksheet be shared with the Ministry of Labour, through the lead inspector or designate, for dissemination on the Ministry of Labour,Training and Skills Development website as deemed necessary and/or appropriate by the Ministry.[2]
  5. Within 6-months from the date of the order, Vixman Construction produce a video to be used in the training and education of workers in fall arrest procedures and best practices which may be featured on the Ministry of Labour, Training and Skills Development website and/or incorporated in any fall arrest protection courses or programs of study endorsed by the Ministry of Labour or the IHSA.  The court directed that the video is also to be dedicated to the memory of the deceased worker and that it is to include certain elements:
  1. identify the project with specific focus on the low, narrow and irregular features of the structure with leading edge gaps present in multiple areas and in multiple directions;
  2. isolate what went wrong leading up to the fall;
  3. highlight the lessons learned from the accident and the remedial actions taken by Vixman Construction to prevent any future harm;
  4. review the proper use and configuration of self-retracting lifelines with specific emphasis on fall clearance limitations, the importance of calculating and recording fall clearances prior to the commencement of work, safe anchoring procedures at foot level and special requirements when leading edge exposures are present.
  1. The reporting obligations will end when all conditions of the probation order have been fulfilled in their entirety with proof of compliance to the satisfaction of the probation officer or designate.

Again, the decision does not set out any particular submissions of the parties so it is not clear if any of these terms were suggested or recommended or if they were created entirely by the Justice of the Peace.  Whatever their source, the conditions direct the creation of very specific safety materials (the safety talk and PSI) and are aimed at publicizing the convictions and post-incident measures.  However well-intentioned and aimed at preventing future such incidents, which is not questioned by the authors, these terms can be said to have created a result much harsher, in all of the circumstances, than sentences ordinarily imposed in these matters.

The legality of these terms are discussed below but before considering them, it would be prudent to compare “creative” sentences in Ontario with other jurisdictions as that will put the Ontario system in context. 

Creative Sentences for OHS Offences in Canada: A Brief Jurisdictional Comparison

To date, Ontario Crown prosecutors and courts have not followed the approach of other Canadian jurisdictions which provide for “creative” sentences – essentially sentences that provide sentencing options beyond fines – for corporate defendants.  Before Vixman Construction, Ontario had only one other OHSA case in which probation was imposed on a corporation: R. v. Van-Rob Stampings Inc., 1996 CarswellOnt 2475 (Prov. Div.).  Notably, in that case, the Crown and defence agreed to the imposition of a probation order on the corporation and to a number of the terms that would be contained in the order.

The approach of the Crown in the Van-Rob Stampings case appears to have been unique as there is no indication that the Crown agreed to probation in Vixman Construction.  Indeed, the experience of the authors is that Ontario Crown prosecutors see fines as the sole penalty available to be imposed on corporations convicted of OHSA offences.  Proposals for charitable donations or contributions to educational institutions by corporations have, to date, been rejected for inclusion as part of sentencing terms.  As well, the position of the government may have been apparent when Ontario revised its sentencing provisions in December 2017.  Maximum fines were substantially increased but no provision was made for any form of alternative or “creative” sentence.

This decidedly uncreative approach is starkly contrasted by the approach to OHS sentencing in in other Canadian jurisdictions.  In particular, health and safety legislation in Alberta and Nova Scotia provide for “creative” sentences and they are routinely imposed when sentencing corporate defendants.

In Alberta, the Occupational Health and Safety Act contains a provision permitting a court to require a defendant to provide funds to a party for the purpose of training or educational programs, research programs, worker health and safety initiatives (by non-profit organizations), and other matters furthering the goal of achieving healthy and safe workplaces.  In addition, the court can direct the defendant to take any other action the court believes appropriate.  This is a very broad power providing great flexibility in fashioning “creative” sentences.  They have also led to corporations being put on probation with terms that have required the corporation to submit to periods of enhanced regulatory supervision, send representatives to specific training courses, and publicly acknowledge the offence. Generally, however, where such creative penalties directed at preventive steps have been imposed in addition to fines, the fines have been significantly lower (frequently just a fraction of the expenditures directed a prevention), in apparent recognition of the “creative” expenditures and efforts.

Similarly, the Occupational Health and Safety Act in Nova Scotia provides for exceptionally broad “creative” sentences.  In addition to any fine or other punishment that may be imposed, a party convicted may be ordered to, amongst other things, publish the facts relating to the offence; pay the Minister of Labour an amount for the purpose of occupational health and safety initiatives; perform community service; and comply with other reasonable conditions deemed appropriate by the court.  The kinds of creative sentences imposed have included requiring that safety presentations (the most frequent aspect of a “creative” sentence), addressing lessons learned, be delivered at public forums, community centres, annual general meetings for industry and educational institutions; creating annual educational bursaries in memory of deceased workers; and media advertisement and billboards to educate on a safety issue.

What these two jurisdictions demonstrate is that some jurisdictions provide for broad sentencing provisions permitting “creativity” by the parties and courts.  The court in Vixman Construction believed it also had broad powers to be “creative “rather than bound to the historical trend of imposing fines for general deterrence of other parties  There is some question of whether that is the case.  There are also some issues worth note that seem to arise in the specific terms imposed by the court.

Corporate Probation: Legally Available for Ontario OHSA Offences or Not?

In imposing the probation order on Vixman Construction, the court relied on a 1995 decision from the Ontario Court of Appeal in R. v. Bata industries Ltd..  That decision involved a prosecution under the Ontario Water Resources Act in which the corporate defendant was, amongst others, given a probationary term prohibiting it from indemnifying two directors, who were co-defendants in the matter, for fines imposed on them.  That specific term was overturned on appeal.  However, the decision did not directly consider whether probation could be imposed on a corporation because the issue does not appear to have been raised or disputed.

There does, however, appear to be some question as to whether a provincial offences court in Ontario could place a corporation on probation. 

(a) The General Authority for Probation

Section 72 of the Ontario Provincial Offences Act empowers a court, in more serious cases, to impose probation after suspending sentence, in addition to a fine or imprisonment, or in addition to an intermittent jail sentence of no more than 90 days.  In considering whether a probation order should issue, the court is to take into account the age, character, and background of the defendant. 

These criteria are challenging to apply to a corporation.  While the age of a corporation may be easily determined based on the date of incorporation, knowing the age of a corporation is not as contextually helpful as knowing the age of a person.  Corporations aren’t accorded notions of immaturity or old age and the conditions or circumstances that come with them.  Age, for a corporation, seems to be only how long it has been in existence.  While that may provide baseline information about the company, it does raise a question of how helpful that information would be in determining whether probation would be appropriate.  Is probation more appropriate for the young corporation or the venerable one?  Without the context associated with the age of a person it appears that the age of a corporation adds relatively little to the analysis.

It may be that a court is able to assess the character of a corporation but that may involve different considerations than would be used to consider the character of an individual.

However, the challenges in applying the criteria are more patent when trying to consider the background of a corporation.  A corporation will not have a background of having addictions, being subject to an abusive upbringing, associating with other criminals, or any of the other personal circumstances that can be attributed to and considered when evaluating an individual defendant.

Therefore, if these are the factors that must be considered and they are not readily applicable to a corporation, there does appear to be some question as to whether probation can be imposed on a corporation under the Provincial Offences Act in Ontario.

(b) Additional Probationary Terms

Additional concerns arise when considering the authority of the court to impose additional probationary terms – the “creative” conditions that go beyond those automatically imposed by statute.  Here, it is worth considering the specific provision relied on by the court in Vixman Construction to impose many of the additional terms.  That is section 72(3)(c) of the Ontario Provincial Offences Act.  It reads:

72. (3) In addition to the [statutory conditions], the court may prescribe as a condition in a probation order,

(c) where the conviction is of an offence punishable by imprisonment, such other conditions relating to the circumstances of the offence and of the defendant that contributed to the commission of the offence as the court considers appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant [emphasis added]

A key issue arising from the additional probation orders in Vixman Construction is that the offences for which Vixman Construction was convicted are not punishable by imprisonment.  In order for the court to impose additional terms on a defendant, imprisonment must be an available sentencing option.  However, in this case, Vixman Construction is a corporation and it is trite to observe that a corporation cannot be imprisoned.  Further, the penalty provision that applied to Vixman Construction was section 66(2) of the OHSA.  Imprisonment is not a possible penalty under that section – only a fine of up to $1,500,000. 

Consequently, because the availability of a jail sentence is a precondition to imposing additional probationary terms, there is further reason to question whether the Ontario Provincial Offences Act gives a court the power to impose a probation order on a corporation for an OHSA offence.

(c) The Sanction for Non-Compliance

Another aspect that calls into question the availability of probation orders for corporations is the available penalty for non-compliance with the terms of probation.  Where the probation order has not been issued with a suspended sentence (meaning a sentence was imposed but suspended pending performance of the probationary terms), section 75 of the Provincial Offences Act provides that, upon conviction for breaching the probation order, the defendant can be sentenced to a fine of not more than $1,000 and/or be jailed for not more than 30 days.  Again, corporations cannot be jailed which means that the maximum penalty is a fine of no more than $1,000.  For the vast majority of corporations, even the maximum fine would be a modest penalty which implies that the Ontario Legislature intended probation orders to be directed at individual defendants rather than corporations.

Possible Concerns Arising From the Additional Terms Imposed

Even if the threshold issues noted above do not prevent placing a corporation on probation for an OHSA offence, there are, in the authors’ views, some concerns with the probationary terms imposed on Vixman Construction.

(a) Obligations Placed on Non-Parties

The probation order contemplates actions by parties who were not defendants and were not before the court.  This includes the IHSA who have, essentially, been directed to publish the article produced by Vixman Construction in its online magazine and the Ministry of Labour, Training and Skills Development who have similarly been directed to post material on their website (though the prosecution was on behalf of the Ministry, the prosecution was conducted by lawyers employed by the Ministry of the Attorney General). 

It is questionable, if not doubtful, that the court deciding the Vixman Construction matter had any jurisdiction over these parties such that it could direct them, without their participation in the proceeding, to take these steps.  It is possible, given that the materials to be posted are to be created by Vixman Construction, that the IHSA or the Ministry will not agree with or be aligned with the content of the material.  They may, legitimately, decline to post the material which could create issues because, if that happens, Vixman Construction may not have fully discharged the terms of the probation order.  It could also mean that, in order to have the material published or posted, Vixman Construction may be required to meet additional or different content requirements from the IHSA or the Ministry.

(b) Probation Orders Exceed Permissible Purpose

The terms of a probation order are not to act as additional punishment.  Rather, they are to be rooted in the circumstances of the offence and the defendant that contributed to the offence and are to prevent similar contraventions or assist in the rehabilitation of the defendant.  There is some question whether all terms of the probation orders meet this requirement.

The fourth term, requiring preparation of the enhanced safety talk and PSI, arguably addresses circumstances that led to the accident.  Had the preparation of the enhanced materials been the totality of the probationary term it may well fall within the intent of probation as a sentencing option. 

However, the term goes on to require that the enhanced materials, acknowledgement of the offence, and other remedial actions be publicized and that reference to the deceased worker be made.  Further, the fifth term instructs that the same materials will be provided to the Ministry of Labour, Training and Skills Development for possible dissemination on its website.  These publicity elements of the probationary terms do not appear to address circumstances that contributed to the offence or to rehabilitating Vixman Construction.  Rather, they have a flavour more consistent with adding to the punishment or further adding to the weight of the penalty to further general deterrence.  This may be inappropriate because probation orders are not to be used to further punish the defendant.  There may, therefore, be some question as to the propriety of, at least, parts of the additional terms.

In sum, the sentence imposed on Vixman Construction raises a number of issues and concerns about the use of probation when sentencing corporations for violations of the OHSA. 

Take-Aways from Vixman Construction

Given the short period of time since the Vixman Construction decision, it remains to be seen whether there will be an appeal by Vixman Construction or the Crown.  Appeals could come which may help clarify issues surrounding the availability of corporate probation for OHSA offences.

That being said, and notwithstanding the concerns identified above, a reading of the sentencing decision indicates a genuine motivation by the Justice of the Peace to fashion a sentence that was more than just punishment.  The court sought to craft a penalty that would prevent similar offences in the future.  Notwithstanding the specific probationary terms imposed in this case, creativity in moving corporate sentencing beyond just fines may well be welcomed by employers, constructors and other corporate actors in Ontario.  Indeed, in the experience of the authors, many corporate defendants would like to explore the possibility of creative sentences – something where the actions or money of the corporation advance health and safety in some way.  This may include directing funds for educational or training purposes, requiring staff to attend courses, or other steps that would address the circumstances leading to an offence.  Crown prosecutors may also welcome broader sentencing provisions as they may provide greater flexibility in fashioning a penalty that addresses a specific circumstance and defendant.

There do appear to be compelling arguments that the current system in Ontario does not give the courts (and, by extension, the Crown and defence) the power to be “creative”.  If that is the state of the law, then true creativity in sentencing for OHSA matters may have to wait for legislative change – something that does not appear likely in the near future. 

Vixman Construction may provide some renewed motivation for corporate defendants to explore these possibilities with the Crown or courts – the historical experience is that “creative” sentences may be available with the consent of the Crown prosecutor.  Any such discussion will have to be carefully managed and, where presented to a court, persuasive reasons justifying the “creative” aspect of sentencing would be essential.  Also, Ontario corporations will need to “be careful what they wish for” if considering or seeking creative sentencing options.  If the approach of other jurisdictions is followed, monetary fines may be lowered in order to take account of the creative educational or restorative aspect of the sentence.  If, however, Vixman Construction is followed, the “creative” sentence may be added to the already significant fine and surcharge and may result in sentences that are harsher overall.

[1] The offences were alleged to be contrary to subsections 26.6(2) and 26.6(3) of Ont. Reg. 213/91, respectively, and were contrary to paragraph 25(1)(c) of the OHSA.

[2] It should be noted that the due diligence evidence presented indicated that tool box talks and PSI’s were standard practice and conducted- however none involved calculating the fall distance, thus none took steps to prevent the incident.

This newsletter is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact a Mathews Dinsdale lawyer for assistance.

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