'Watershed year' for safety case law

Three legal trends OHS officers should watch out for in 2023

'Watershed year' for safety case law

We are in “a watershed year” when it comes to regulatory and case law trends, according to Jeremy Schwartz, partner with Stringer LLP.

An upcoming Supreme Court of Canada decision could have a profound impact on industries across the country, and Bill 88, Ontario’s Working For Workers Act, 2022, made significant changes to the health and safety act that could lead to an increase in the number of charges and the amount of fines for corporations, as well as their officers and directors found guilty of violations.

Supreme Court Case

The highest court in the land will hear arguments on October 12 in a case that will decide whether or not the City of Greater Sudbury may be held responsible for the death of a pedestrian. Cecile Paquette, 58, died in September 2015 after being run over by a grader operated by Interpaving, a contractor hired by the City of Greater Sudbury.

The Ontario Ministry of Labour filed charges against Interpaving and the City of Greater Sudbury. Interpaving was found guilty, but in 2018 the trial court ruled the city was not responsible because it was neither the “employer” nor the “constructor” on the job.  

The Crown disagrees and believes the City of Greater Sudbury was the “employer” responsible for the relevant health and safety violations because it hired Interpaving and had a quality control inspector visit the work site. 

Schwartz, who recently spoke at the Canadian Safety and Sustainability Conference, in Orillia, Ontario, is co-counsel for the City of Greater Sudbury as the case heads to the Supreme Court and says the Crown’s argument does not align with the case law and industry practice. “This has the potential to undo decades of jurisprudence and understanding and decades of contract law in construction across every sector.”   

Schwartz says municipalities right across the country are watching this case closely. “We have had a number of major municipalities in Canada apply to intervene at the Supreme Court.  We’ve had requests from intervenors across the country to either directly get involved or just to assist us in making this pitch at the Supreme Court.”

Schwartz is “conservatively confident” the Supreme Court will rule in favour of the City of Greater Sudbury.

Stiffer sentencing for not pleading guilty

Schwartz says we could see a concerning trend in Ontario created by the province’s new Working for Workers Act, 2022 which increases the maximum fines the courts may hand out if the accused is found guilty of health and safety law violations, including if they went to trial and did not plead guilty early in the proceedings.

“To impose a harsher sentence because you don’t plead guilty early is probably unconstitutional, and that’s what our courts have said before. But now the law will expressly require the courts to consider this as a negative factor which should increase the severity of the sentence,” says Schwartz.

He expects to see appeals in cases like these and thinks this issue has the potential to end up at the Supreme Court as well.

Maximum fines increased for officers and directors

Also included in the Working for Workers Act, 2022 is a massive 15-fold increase in the fines corporate officers and directors could face if found guilty of health and safety act violations. Previously, a conviction could carry a maximum fine of $100,000. Now the maximum fine is $1.5 million per conviction.

“That should be a wakeup call, and we expect the ministry of labour will be asking the courts to significantly increase the fines,” says Schwartz, who also expects to see more charges laid as well.  

Schwartz suggests the Ontario Ministry of Labour will be more inclined to target individuals. “It was less common, especially in larger companies, less common for officers and directors to be personally charged. After these changes I would expect that to increase.”

He suggests officers and directors make sure they have the legal and insurance protections in place to support and indentify them, where permissible.