An Ontario employer has been convicted and fined $125,000, under the Occupational Health and Safety Act (“OHSA”),for failing to take the reasonable precautions necessary to protect against the transmission of COVID-19. On June 6, 2022, Scotlynn Sweetpac Growers Inc., a farming company, pleaded guilty to a charge laid following the investigation of an outbreak at its operation in Norfolk County.
The fine imposed is the most significant penalty imposed, under the OHSA, for faltering in workplace COVID-prevention measures. It also ranks amongst the highest penalties ever imposed under the OHSA for a violation that is not causally connected to a worker injury or death.
Scotlynn’s farming operation grows a variety of produce and, at the relevant time, it employed approximately 220 agricultural workers. Scotlynn, like other agricultural operations, was seen as essential to the food supply in Ontario and was permitted to continue operating during the provincial shutdowns of other workplaces in response to the COVID-19 pandemic. During the spring and summer of 2020, Scotlynn worked closely with local public health authorities to develop protocols and guidelines for its workers which included an education session to educate workers about the transmissibility of COVID-19, how to take steps to minimize transmission, and isolation protocols when symptomatic.
However, at the end of May 2020, a COVID-19 outbreak was declared at Scotlynn. Testing of the workers revealed 196 positive cases – the vast majority of which were asymptomatic.
The Ministry of Labour, Training and Skills Development investigated the outbreak at Scotlynn, and, amongst other charges, alleged that Scotlynn had contravened section 25(2)(h) of the OHSA. It was alleged that Scotlynn had failed to take every precaution reasonable in the circumstances for the protection of a worker because it failed to isolate symptomatic workers, failed to consistently implement and enforce screening for COVID-19 symptoms at the workplace, and for permitting workers to regulate themselves when it came to the use of facemasks.
In an agreed statement of facts presented as part of the guilty plea proceedings, the court heard that: from, at least, March 31, 2020, isolating COVID-19 symptomatic individuals from others had been a reasonable precaution and that Scotlynn had failed to isolate symptomatic workers from other workers; between May 13, 2020 and August 10, 2020, Scotlynn did not consistently implement and enforce screening for COVID-19; and that Scotlynn did not consistently enforce the use of face masks by workers when it ought to have been more proactive.
While the circumstances underlying the conviction are specific to Scotlynn’s workplace, employers should note comments made by the Crown. In recommending the $125,000 fine (to which a 25% surcharge is added) to the court, the Crown indicated that the recommendation had accounted for Scotlynn being an essential workplace that, like other employers, was grappling with how to adapt to the pandemic’s early stages. Knowledge about COVID-19 and the prevention of transmission has evolved such that many of the necessary measures are widely known. As a result, employers may find a less sympathetic reception from Crown prosecutors should preventative measures not be taken if they become necessary again.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
The author gratefully acknowledge the assistance of Amanda Finelli, a Summer Student in the firm’s Toronto office.