Court Suggests that Jail Terms May Become the
"New Norm" for Roofing Accidents
Ryan Conlin
A
recent sentencing decision involving the owner of a small roofing
company suggests that the Courts may be shedding their historical
reluctance to impose jail terms in OHSA cases.
Courts have historically been very reluctant to impose jail terms against individuals convicted of offences under the Occupational Health and Safety Act. The maximum sentence under the OHSA for an individual is one year in jail per count.
According to a 2008 decision of the Superior Court of Justice, less
than two dozen individuals had been sentenced to jail under the OHSA.
The Superior Court also noted that jail was generally imposed in cases
where the accused had willfully violated the Act (i.e. lying to an
Inspector) rather than being negligent.
R. v. Roofing Medics Ltd.
R. v. Roofing Medics Ltd.
involved a worker on a residential roofing project who fell from a
ladder and tragically died when he landed on a fence. The worker was
wearing a fall protection harness but it was not attached to anything.
The worker had experience in the roofing industry and was recently
trained in fall protection.
The owner of the company lied to the police and Ministry of Labour
Inspectors when he told them the worker was performing some work for him
as “a friend” at his home when the accident occurred (the OHSA does not
currently apply to unpaid work).
The owner of the roofing company admitted the truth to the Ministry one
week later. The company had also been subject to an inspection from
the Ministry of Labour about a year before the accident. The Ministry
inspection revealed deficiencies in ladder safety and fall protection
training. The Court also accepted evidence that the owner of the
company was aware that the deceased worker regularly did not tie off to
fall protection.
The Court imposed a ten-day jail term for the fall protection charge
and a five day jail term for lying to the Ministry of Labour about the
nature of the accident. In our view it is not particularly surprising
that a jail term was imposed in this case in light of the fact that the
owner of the company lied about key information to the Ministry of
Labour, had a prior history of fall protection safety violations and the
Court accepted that the owner was aware that the worker did not
regularly use fall protection equipment properly.
However, the Court went beyond the immediate facts of this case and the
made the following comment which appears to be directed to the broader
roofing industry:
"The
major reason a jail sentence is necessary for Mr. Markewycz is to deter
others from ignoring the legislated fall protection requirements. Others
in the industry must pause to consider that each and every time they
embark on a roofing project they may go to jail if one of their
employees does not use fall protection gear. It is unacceptable for any
roofer to be injured or to die as a result of a fall off a roof. These
injuries and deaths can be prevented. Since the industry has not been
able to accomplish prevention to date, it is appropriate for the Court
to send a message that offenders will be dealt with harshly…
The
Crown sought a sentence of 30 days for Mr. Markewycz on the fall arrest
offence. For future offenders, such a sentence may well be appropriate;
it may even be on the low side. However, given the fact that jail
sentences have not commonly been given for this offence, it is
appropriate that a shorter sentence be given to Mr. Markewycz. The
sentence needs to be of sufficient length to deter other offenders by
sending a message that jail is a sanction that the courts will use for
fall arrest offences. I am satisfied that a sentence of 10 days in jail
for the fall arrest offence is sufficient for Mr. Markewycz in order to
meet the sentencing objectives I have identified. I hasten to
add that if workers continue to fall off roofs in contravention of fall
arrest regulations, supervisors can expect that jail sentences will be
longer and may well become the norm. I note that the maximum jail
sentence for this offence is 12 months." [Emphasis added]
The
Court made it clear that it believes that jail terms need to be imposed
in a much wider range of fall protection cases and suggests that
incarceration could be potentially be the standard penalty in such
cases. In our view, this reasoning directly conflicts with the comments
of an appeal court in one of the only cases on this issue which suggested, “…that imprisonment, while it is clearly available in exceptional cases, is meant to be a sanction that is seldom employed.”
Looking Ahead
It
remains to be seen whether other Courts adopt the approach suggested in
this case to sentencing to other fall protection cases in the roofing
industry and beyond. We expect that eventually the Ontario Court of
Appeal will have to weigh in on the subject. This case may very well
represent a dramatic change in how individuals are sentenced under the
OHSA. Employers should anticipate that Crown Prosecutors may now take
the position that supervisors, officers and directors should face jail
time far more frequently for serious workplace injuries and fatalities,
particularly when the case relates to fall protection or potentially
machine guarding or lockout. Such an approach would likely result in
considerably more trials and contested sentencing hearings.
It
is our view that the Courts should not alter the traditional to
approach to sentencing to making incarceration the “standard” penalty in
fall protection cases. In fall protection cases, the Crown is
generally only required to prove that the worker fell from a distance
where fall protection was required. The Defendant bears the burden of
proving due diligence and the burden of proof is an extremely high one.
The Crown frequently takes the position that the failure to exercise a
single reasonable precaution is enough to derail a due diligence
defence. It is our view that the failure of a supervisor to take a
single reasonable precaution should not result in and of itself in a
person going to jail.
The
Criminal Code remains available for cases where there has been an
egregious level of negligence by corporations and individuals, as the
recent Metron Construction fall protection case shows. Jail terms
should only be imposed in our view where there has been an element of
wilful violation of the law by an individual accused. The actions of
the roofing company in lying about the circumstances of the accident in
the case at issue represent a good example of where a jail term may very
well be appropriate.
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