R. v. Ward, 2014 ONCA 53

Her Majesty the Queen in Right of Ontario (Ministry ofLabour) v. Flex-N-Gate Canada Company [Indexed as: Ontario (Ministry of Labour) v. Flex-N-GateCanada Co.] Ontario Reports Court of Appeal for Ontario, Laskin, Tulloch and Strathy JJ.A. January 23, 2014 119 O.R. (3d) 1 | 2014 ONCA 53 Case

Summary Employment — Occupational health and safety — Offences — Sentencing — Employer complying immediately with two ordersissued by Ministry of Labour inspector following workplace accident but taking no corrective action beyond that set out incompliance orders — Employer convicted of two offences under Occupational Health and Safety Act ("OHSA") as result ofaccident and fined $25,000 for each offence — Appeal judge erring in ordering that fines be paid concurrently to rewardemployer for compliance — Statutorily required compliance with inspector's orders not a mitigating factor on sentence — Courtnot having jurisdiction to impose concurrent fines for contraventions of OHSA — Occupational Health and Safety Act, R.S.O.1990, c.

O.1. Following a workplace accident, a Ministry of Labour inspector issued two compliance orders. The employer complied with the ordersimmediately, but took no corrective action beyond that set out in the orders. The employer was subsequently convicted of two offencesunder the Occupational Health and Safety Act ("OHSA") as a result of the accident and was fined $25,000 for each offence. Its sentenceappeal was allowed. The appeal court made the fines for each offence "concurrent" in order to reward the employer for its compliancewith the inspector's orders. The Crown appealed. Held, the appeal should be allowed.

The court has no discretion to treat an employer's statutorily required post-offence compliance as a mitigating factor on sentence. Doingso would undermine one of the most important goals of the OHSA -- accident prevention -- and the statute's most important sentencingprinciple -- deterrence. The court does not have jurisdiction to impose concurrent fines for a contravention of the OHSA. R. v. Ward, (ON CA), [1980] O.J. No. 1439, 56 C.C.C. (2d) 15 (C.A.), apld Other cases referred to R. v. Cotton Felts Ltd., (ON CA), [1982] O.J. No. 178, 2 C.C.C. (3d) 287, 8 W.C.B. 447 (C.A.); R. v.

Echo Bay MinesLtd. (1980), 12 C.E.L.R. 38 (N.W.T. Terr. Ct.); R. v. Ellis-Don Ltd. (1992), (SCC), 7 O.R. (3d) 320, [1992] 1 S.C.R.840, [1992] S.C.J. No. 33, 92 D.L.R. (4th) 288, 134 N.R. 236, 53 O.A.C. 312, 71 C.C.C. (3d) 63, 8 C.R.R. (2d) 314, 32 A.C.W.S. (3d)906, 15 W.C.B. (2d) 601, revg (1990), (ON CA), 1 O.R. (3d) 193, [1990] O.J. No. 2208, 76 D.L.R. (4th) 347, 42O.A.C. 49, 61 C.C.C. (3d) 423, 34 C.C.E.L. 130, 2 C.R. (4th) 118, 5 C.R.R. (2d) 263, 24 A.C.W.S. (3d) 188, 11 W.C.B. (2d) 457 (C.A.);[page2 ]R. v. Inco Ltd., (ON CA), [2000] O.J. No. 1868, 132 O.A.C. 268, 46 W.C.B. (2d) 389 (C.A.); R. v.

VanWaters & Rogers Ltd., [1998] A.J. No. 642, 1998 ABPC 55, 220 A.R. 315, 39 W.C.B. (2d) 34 (Prov. Ct.) Statutes referred to

Canadian Charter of Rights and Freedoms , s. 1 Criminal Code , R.S.C. 1985, c. C-46 [as am.] Environmental Protection Act , R.S.O. 1990, c. E.19, s. 188.1(4) Occupational Health and Safety Act , R.S.O. 1990, c. O.1 [as am.], ss. 25(1) ( c ), 2 ( a ), 37 , 66(1) Provincial Offences Act , R.S.O. 1990, c. P.33, s. 131 Rules and regulations referred to Industrial Establishments , R.R.O. 1990, Reg. 851, s. 45(

a) APPEAL by the Crown from the order of Rawlins J. of the Ontario Court of Justice dated April 15, 2009 allowing the appeal in part from the sentence entered by Justice of the Peace Ryan-Brode dated July 6, 2006. Gráinne McGrath and Jason Tam , for appellant. Gino Morga , for respondent. The judgment of the court was delivered by LASKIN J.A. : — A. Introduction [ 1 ] An employer breaches a provision of the Occupational Health and Safety Act , R.S.O. 1990, c. O.1 (" OHSA " or the "Act"), resulting in a workplace accident.

A government inspector investigates the accident and orders the employer to comply with the provision. The employer does so. In sentencing the employer for breach of the Act, should the court treat the employer's "corrective action" as a mitigating factor? If the employer breaches more than one provision of the Act, does the court have jurisdiction to impose concurrent fines? [ 2 ] These two important questions came to this court with leave, following the sentencing of the respondent Flex-N-Gate for two breaches of the Act . These two breaches led to an accident in which a worker badly injured her foot.

Flex-N-Gate was fined $50,000 -- $25,000 for each offence. However, the appeal court judge ordered that the fines be paid concurrently -- effectively reducing Flex-N- Gate's obligation by half -- to "reward" the company for its compliance. The Crown was granted leave to appeal both on the question whether required compliance might [page3 ]be a mitigating factor on sentence, and on the question whether the court has jurisdiction to impose concurrent fines. B . Background (

a) The accident: January 28, 2004 [ 3 ] Flex-N-Gate produces automobile parts at its factory in Tecumseh, Ontario. It processes metal sheets into vehicle bumpers. When the accident occurred in January 2004, Flex-N-Gate had 500 employees; with the downturn in the automotive industry, by the time of trial in July 2006, Flex-N-Gate's workforce was down to 250 employees. [ 4 ] Two production lines process the metal sheets. On each line are bundles, each containing 120 to 170 sheets. An entire bundle weighs between 5,000 and 5,200 pounds.

When the bundles are received from a supplier, they are held together by four bands. [ 5 ] To get the sheets to the production lines, a forklift operator retrieves the bundles from the storage area and places them in a cradle in the production area. The accident occurred when the forklift operator was bringing a bundle of sheets to the production line. He first placed the bundles on the floor near the cradle. Then, the worker who was injured, Louisa Sarkisian, cut three of the bands, leaving only one band to secure the bundle.

At the time, she was following the company's standard procedure. [ 6 ] Unfortunately, when the forklift operator tried to load the bundle into the cradle, the bundle slipped off the fork and fell to the factory floor. The sheets scattered "like a deck of cards" across the floor. One of the sheets struck Ms. Sarkisian's foot. She was taken to the hospital, and underwent surgery to repair several broken bones in her foot. She was off work for 4[cents] months, and on crutches for two months. She took physiotherapy for about a year, but she still has residual pain in her foot.

(

b) The compliance orders [ 7 ] A Ministry of Labour inspector investigated the accident and issued two orders for each of the two production lines. The first order required Flex-N-Gate to comply with the regulatory provision for the safe movement of material. The second order -- a stop work order - - prohibited Flex-N-Gate from using the equipment involved in the accident until it complied with the first order. (

c) Flex-N-Gate complies with the orders [ 8 ] Flex-N-Gate immediately complied with the order for the safe movement of materials. It introduced a new procedure for [page4 ]moving bundles of sheets. This new procedure required that all four bands securing a bundle be kept in place until the bundle is in the cradle. Once the bundle is in the cradle, a worker can cut and remove all four bands. Significantly, there was no evidence that this corrective action taken by Flex-N-Gate went beyond what the compliance orders required. (

d) The trial proceedings [ 9 ] After a three-day trial before a justice of the peace in July 2006, Flex-N-Gate was convicted of two offences under the Act : failing to ensure that material was moved in a manner that did not endanger the safety of a worker as prescribed by s. 45(

a) of the Industrial Establishments regulation, R.R.O. 1990, Reg. 851 , and contrary to s. 25(1) (

c) of the Act; 1 and failing to provide information, instruction and supervision to protect the health and safety of workers, contrary to s. 25(2) (

a) of the Act. 2 [ 10 ] The justice of the peace imposed a $50,000 fine on Flex-N-Gate, $25,000 for each offence. [ 11 ] In imposing this fine, the justice of the peace noted that the maximum fine on a corporation for each of these offences was $500,000. She also noted that Flex-N-Gate "is a significant operation but not huge", and that "this court is familiar with many graver workplace injuries". She found expressly "that this accident did not occur from wilful disregard of a known hazard" and, finally, she acknowledged the steps taken by Flex-N-Gate "to establish a safe working environment". (

e) Appeal proceedings [ 12 ] Flex-N-Gate appealed both its convictions and its sentence to the Ontario Court of Justice. On April 15, 2009, in brief reasons, the appeal court judge dismissed the conviction appeal, but allowed the sentence appeal. She did not change the amount of the fine for each offence -- $25,000 -- but she made the fines "concurrent", meaning that Flex-N-Gate was required to pay only $25,000, instead of the $50,000 fine ordered by the justice of the peace. [page5 ] [ 13 ] In reducing the amount of the fine to be paid, the appeal court judge relied on the corrective action taken by Flex-N-Gate.

She said: . . . and I would find that general deterrence is the paramount consideration. But, little weight was given to the corrective action taken by the appellant. The ameliorating action was taken prior to trial, even though it could have been construed as consciousness of guilt or wrong-doing. For those reasons, because the same way we like to punish with respect to general deterrence we also, as courts are concerned, like to reward with respect to people doing what I consider to be the right thing, I will not interfere with the sum of $25,000 but I will make it concurrent on counts one and three. (

f) The motion for leave to appeal [ 14 ] The Crown sought leave to appeal under s. 131 of the Provincial Offences Act , R.S.O. 1990, c. P.33. In a short endorsement dated September 20, 2010, Armstrong J.A. granted leave to appeal on the two issues I referred to in the introduction: (1) "[t]he issue of mitigation after an order has been made by an inspector under the Occupational Health and Safety Act "; and (2) "the issue of concurrent fines under provincial legislation". C.

Analysis First issue: Should the court treat Flex-N-Gate's corrective action as a mitigating factor on sentence? [ 15 ] Once the ministry inspector issued compliance and stop work orders, Flex-N-Gate had two choices: appeal the orders to the Ontario Labour Relations Board, or comply with them. Failure to comply with an inspector's order is itself an offence under the Act . 3 [ 16 ] Flex-N-Gate did not appeal the orders. It chose to comply with them. It put in place a new procedure for the safe movement of bundles of sheets.

Its corrective action rectified the flaws in its existing procedures. [ 17 ] The justice of the peace gave no weight to Flex-N-Gate's compliance with the inspector's orders. The appeal court judge, however, considered Flex-N-Gate's compliance to be a mitigating factor on sentence: she held that Flex-N-Gate ought to be "rewarded" for doing "the right thing". [page6 ] [ 18 ] The Crown submits that the appeal court judge erred in treating Flex-N-Gate's compliance -- which was required by the Act -- to be a mitigating factor.

Flex-N-Gate submits that the appeal court judge was entitled to take Flex-N-Gate's compliance into account in exercising her discretion to impose an appropriate fine. [ 19 ] I agree with the Crown's position. The court should not have discretion to treat an employer's post-offence compliance, though statutorily required, as a mitigating factor on sentence. Doing so would undermine one of the most important goals of the OHSA -- accident prevention -- and the statute's most important sentencing principle -- deterrence.

[20] This court discussed the objectives of the OHSA in R. v. Ellis-Don Ltd. (1990), (ON CA), 1 O.R. (3d) 193, [1990] O.J. No. 2208 (C.A.). At paras. 81-82 of his reasons, Carthy J.A. emphasized the objective of accident prevention:4 The preceding analysis of the statute and the defence of due diligence leaves me in no doubt of the pressing and substantial objective ofthe Act, generally, to prevent accidents in the workplace, and, as to s. 37(2) specifically, that the balance of probabilities test furthers thatobjective.

The Act is directly focused on accident avoidance through measures taken in advance of mishaps and because it applies to asegment of commercial society where there is necessarily a dependence upon profits, measures are needed to assure that workers' safetyis not forgotten. . . . Vigilance, expense, effort, attention and record-keeping are an absolute mandate to keep such incidents to a minimum.

The odds of anaccident happening are inevitably reduced by the time, attention and expense devoted to avoidance. [21] The philosophy of the OHSA is to promote a health and safety system that relies on the internal responsibility and voluntarycompliance of individual employers. In other words, workers are best protected when their employers install procedures in theirworkplaces that will prevent accidents from occurring.

Rewarding an employer for taking corrective action only in response to aninspector's order reduces an employer's incentive to take this action before an accident occurs. [page7 ] [22] Rewarding post-offence compliance with an inspector's order also reduces the deterrent effect of sentences for breach of the OHSA.Deterrence has long been regarded as the most important sentencing principle for OHSA offences. This court's decision in R. v. CottonFelts Ltd., (ON CA), [1982] O.J. No. 178, 2 C.C.C. (3d) 287 (C.A.) remains the leading decision on the sentencing ofOHSA offenders.

At paras. 19-20 and 22, Blair J.A. discussed the relevant considerations and stressed the "paramount importance" ofdeterrence: The Occupational Health and Safety Act is part of a large family of statutes creating what are known as public welfare offences. The Acthas a proud place in this group of statutes because its progenitors, the Factory Acts, were among the first modern public welfare statutesdesigned to establish standards of health and safety in the work place. Examples of this type of statute are legion and cover all facts oflife ranging from safety and consumer protection to ecological conservation.

In our complex interdependent modern society suchregulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability byvarious economic groups and make life tolerable for all. To a very large extent the enforcement of such statutes is achieved by finesimposed on offending corporations. The amount of the fine will be determined by a complex of considerations, including the size of thecompany involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximumpenalty prescribed by statute.

Above all, the amount of the fine will be determined by the need to enforce regulatory standards bydeterrence. The paramount importance of deterrence in this type of case has been recognized by this Court in a number of recent decisions. . . . . . Without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be amere licence fee for illegal activity. [Citations omitted] See, also, R. v. Inco Ltd., (ON CA), [2000] O.J.

No. 1868, 132 O.A.C. 268 (C.A.). [23] Deterrence is undermined by treating statutorily required compliance as a mitigating factor on sentence. Rewarding an employer foraction that it should have taken before an accident happened creates an incentive to put off compliance. [24] In a comparable regulated field, the environmental field, several sentencing courts have rejected the argument that a company'sremedial action after a mishap has occurred should be mitigating. For example, in R. v. Echo Bay Mines Ltd. (1980), 12 C.E.L.R. 38(N.W.T. Terr.

Ct.), a judge of the Territories Court held, at para. 13: Similarly, while the response to the spill and the subsequent plans and efforts to upgrade and change the fuel handling system show aserious [page8 ]concern to prevent any future occurrences such as this, they are after the fact, as it were. This legislation is not intendedto encourage compliance after an environmental mishap but rather to demand compliance before those mishaps occur so as to preventthem. [25] And, in R. v. Van Waters & Rogers Ltd., 1998 ABPC 55 , [1998] A.J. No. 642, 220 A.R. 315 (Prov.

Ct.), Fradsham J. of theAlberta Provincial Court wrote, at para. 45: The fact that there were things that could have been done to prevent the spill, and that they were capable of being discerned andimplemented, may well aggravate, and not mitigate, the offence. In my view, the expenditures made by Van Waters for remedial actionare monies it should have spent before the spill. I do not consider those expenditures particularly mitigating. The best that can be said isthat Van Waters has not evidenced recalcitrance in acknowledging its previous failures. [26] The reasoning in these two cases is persuasive.

Indeed, in this province, the legislature has expressly prohibited courts from treatingcompliance with an order under the Environmental Protection Act, R.S.O. 1990, c. E.19 as a mitigating factor on penalty. Section188.1(4) of that Act now states: 188.1(4) Subject to subsection (5), in determining a penalty under

section 187, the court shall not consider compliance with an orderissued under this Act in response to the offence to be a mitigating factor.

[27] This provision puts the issue beyond debate for environmental offences. However, for the reasons I have discussed, even without alegislative prohibition, the same principle should apply to the sentencing of employers for OHSA offences. For these reasons, I do notagree with the sentencing decision of the appeal court judge. [28] In my opinion, the appeal court judge erred because, in rewarding Flex-N-Gate for "doing the right thing", she seemed to equatesentencing for the commission of a crime with sentencing for the commission of a regulatory offence. However, the two contexts arequite different.

Criminal law is concerned with the moral blameworthiness of an accused's conduct; regulatory law is concerned not withthe defendant's conduct but with the results of its conduct. [29] If, after having committed a crime, an offender does some laudable act that he or she is not statutorily required to do -- in otherwords, "does the right thing" -- a court may take that act into account in sentencing the offender.

The act may be seen as mitigating theoffender's moral blameworthiness or as a step towards the offender's rehabilitation. [30] If, after having contravened a safety standard, an employer then acts to correct the problem, it is not "doing the [page9 ]right thing";it is doing what the statute requires it to do. It ought not to be "rewarded" for its compliance. [31] Accordingly, I would allow the Crown's appeal on this first issue and hold that an employer's corrective action taken in response toan inspector's order is not a mitigating factor on sentence. [32] I would, however, add two points.

First, if an employer takes corrective action that goes beyond what was required by an inspector'sorder, then a court may take that additional action into account in sentencing the employer.

"Rewarding" remedial steps not required byan inspector's order would be consistent with the goal of accident prevention. [33] Second -- and perhaps this is an obvious point -- in sentencing an employer for breach of the OHSA, action taken to promote healthand safety before an accident occurs should be treated differently from corrective action taken only in response to an inspector's order.Action taken beforehand is an appropriate mitigating factor on sentence.

Treating it as one is consistent with the goal of accidentprevention and with the principle of deterrence. [34] In this case, in November 2003, just months before the accident, Flex-N-Gate retained a health and safety consultant to do anindependent audit of the company's health and safety program and compliance with OHSA standards. The consultant reviewed Flex-N-Gate's procedures, inspected its factory and then prepared a report, which listed safety concerns and recommended changes to some ofthe company's procedures. Flex-N-Gate implemented the recommendations.

In sentencing Flex-N-Gate, the justice of the peaceacknowledged, appropriately in my view, the steps taken by Flex-N-Gate "to establish a safe working environment". Second issue: Does the court have jurisdiction to impose concurrent fines? [35] The justice of the peace ordered Flex-N-Gate to pay a total fine of $50,000, $25,000 for each of the two offences. The appeal courtjudge did not disturb the amount of each fine but made them concurrent, effectively reducing Flex-N-Gate's obligation by half.

Thesecond question on this appeal is whether the court has jurisdiction to impose concurrent fines for a contravention of the OHSA. Iconclude that it does not have jurisdiction. I rest my conclusion on the case law that governs the imposition of fines in criminalproceedings. [36] The OHSA and the Provincial Offences Act are silent on the question. So too is the Criminal Code, R.S.C. 1985, c. C-46. [page10]However, our court has held that in proceedings under the Code, the court has no jurisdiction to impose concurrent fines.

It may imposeconcurrent custodial sentences for two or more counts, but if the sentence is a fine, it must impose separate fines for each count, but ensuring that the overall fine is appropriate.5 Martin J.A. set out those principles in R. v. Ward, (ON CA), [1980] O.J.No. 1439, 56 C.C.C. (2d) 15 (C.A.), at para. 9: We observe, firstly that there is no authority to impose a concurrent fine as the learned trial judge did, in respect of separate offences: seeR. v. Dedarin et al., (ON SC), [1966] 1 C.C.C. 271.

Where it is appropriate to impose a fine, either in lieu of or inaddition to, a custodial sentence, a separate fine must be imposed on each count in respect of which it is intended to impose a fine takingcare, of course, that the total amount of the fines does not exceed what is appropriate. [37] I would apply these principles in Ward to proceedings under the OHSA. I see no rational basis to do otherwise. [38] Accordingly, I would allow the appeal, set aside the appeal court judge's order making the fines concurrent, and reinstate the totalfine of $50,000 ordered by the justice of the peace. That fine is fit.

It is consistent with the principles and case law for sentencingemployers for breach of the OHSA. D.

Conclusion [39] Leave to appeal to this court was granted on two issues: whether an employer's compliance with an inspector's order after an OHSAoffence has been committed should be a mitigating factor on sentence; and whether the court has jurisdiction to impose concurrent finesfor breaches of the Act. [40] I would allow the Crown's appeal on both issues and reinstate the fines of $25,000 for each offence ordered by the justice of thepeace. [41] First, the appeal court judge erred by "rewarding" Flex-N-Gate for simply complying with the inspector's orders.

Second, the appealcourt judge had no jurisdiction to impose concurrent fines. [42] In oral argument, we were advised that Flex-N-Gate paid the $50,000 fine years ago, and that after the appeal court judge's decision,received a $25,000 refund. Assuming that to be so, I would not require Flex-N-Gate to repay $25,000 to the [page11 ]Crown. The Crown

took this appeal not because of the money in question, but because of the sentencing principles at stake. Appeal allowed. Notes 1 Section 25(1)(

c) of the OHSA provides: "

(1) An employer shall ensure that, . . . (

c) the measures and procedures prescribed are carriedout in the workplace". 2 Section 25(2)(

a) of the OHSA provides: "

(2) Without limiting the strict duty imposed by subsection (1), an employer shall, (a)provide information, instruction and supervision to a worker to protect the health or safety of the worker". 3 Section 66(1) of the OHSA provides: "

(1) Every person who contravenes or fails to comply with. . . (

b) an order or requirement of aninspector or a Director . . . is guilty of an offence. . .". 4 Ellis-Don dealt with the constitutionality of the due diligence defence in s. 37 of the OHSA. The majority of this court held that thesection was unconstitutional because it was not justified under s. 1 of the Canadian Charter of Rights and Freedoms. Carthy J.A., indissent, held that s. 37 was constitutional. The Supreme Court of Canada allowed the Crown's appeal and also upheld theconstitutionality of the section. See R. v. Ellis-Don Ltd. (1992), (SCC), 7 O.R. (3d) 320, [1992] 1 S.C.R. 840, [1992]S.C.J.

No. 33. 5 Under the Criminal Code, if sentences are intended to be consecutive, the court must so direct. Otherwise, sentences will be treated asconcurrent, since they begin when they are imposed. End of Document