Legal safety expert suggests negotiated settlements could include stiffer penalties for OHS violations
Higher fines for companies convicted of violating Ontario’s Occupational Health and Safety Act can be expected, after the province announced it plans to amend legislation to increase maximum fines for corporations from $1.5 million to $2 million. This follows an increase in fines for individual corporate directors and officers announced last year that saw maximum penalties skyrocket from $100,000 to $1.5 million.
Jeremy Schwartz is a partner with Stringer LLP and says the move by the province to increase fines for corporations is likely an attempt to make the penalties for corporations and individuals proportional.
Seeking proportionality
“The financial benefit of an operation is more in the hands of its shareholders and the corporation itself,” explains Schwartz, “and so while it did make sense to increase the fines for officers and directors, given their significant role in overseeing and managing health and safety decisions, it did seem a little bit disproportionate.”
But now, the proposed legislation would make maximum fines for corporations $500,000 more than the maximum fine for an individual corporate officers and directors.
“Perhaps they, like myself, thought that it wasn't proportionate to have the maximum fine for a corporation be the same as for an individual…it makes sense to me that the maximum fine for a corporation ought to be higher than the maximum fine that would be imposed against an officer,” says Schwartz.
Higher settlement fines possible
The lawyer also points out that most prosecutions against an employer are settled through a negotiated early resolution between the Crown and defendants, in which joint submissions are made regarding sentencing.
Schwartz says it means we don’t often see the maximum penalties imposed, “and so I don't think we've seen enough prosecutions which have ended in a contested sentence, post amendments, to really get a sense as to where the courts are going.”
Schwartz indicated that courts have been somewhat divided on whether an increase to maximum fines is an implicit direction for courts to increase fines they impose, in the absence of a corresponding introduction or increase to mandatory minimum fines. However, he thinks it is possible we could see more courts imposing higher fines , and references a 2020 decision from the Supreme Court of Canada in the case of R v Friesen.
The criminal case involved sexual crimes against children, and parliament had recently increased the maximum penalties for these types of crimes, without increasing the minimum penalties. The Supreme Court ruled it made sense to generally impose higher penalties than what was previously issued, “to give effect to the intention of parliament,” says Schwartz.
Stiffer penalties for abuses to migrant workers
As part of Ontario’s third iteration of the Working for Workers Act, it is also proposing fines between $100,00 and $200,000 for employers who withhold travel documents, such as passports and work visas, from foreign nationals. Those fines are per-passport, or per-document.
The practice of taking and keeping travel documents is far too common according to advocates of migrant workers. It is a tactic to control and prevent them from speaking out about unfair treatment and unsafe workplace conditions.
Schwartz think this type of behaviour would be better curbed through amendments to the Criminal Code of Canada. “This strikes me as something that is reprehensible, and I think the criminal law is probably a more effective way to address it.”
Only the federal government can change the Criminal Code. But the move by Ontario would make it the toughest province in Canada when it comes to penalizing these as regulatory offences.
The Ministry of Labour, Immigration, Training and Skills Development states in a press release in addition to the per-passport penalties, “individuals convicted of withholding passports would be liable to either a fine of up to $500,000, up to 12 months imprisonment, or both.”
Corporations convicted of this offence could face a fine of up to $1 million.
“Anyone who preys on vulnerable members in our community has no place in our society,” says Monte McNaughton, Minister of Labour, Immigration, Training and Skills Development.
Even still, Schwartz thinks the offence is criminal in nature. “There's no moral blameworthiness that is proven or required to be attached to a provincial offence, whereas a criminal offence has an element of moral blameworthiness.” Schwartz notes, however, that there is nothing preventing the federal government from addressing this concurrently in the Criminal Code.
