Published by our Labour and Employment Law team.
As of July 1, 2010, employers convicted of offences under sections 236 and 237 of the Occupational Health and Safety Act (OHSA) may be fined substantial amounts, the fines having been increased by a factor of six: since January 2011, the maximum fine for an offence under section 237 OHSA has been $300,000.
Fortunately, the CSST has made some changes to its operating methods in the interim, in particular by implementing its new prevention and inspection intervention framework. While the impact is sometimes difficult to distinguish from past practices, the framework has had an impact on the way the CSST does things.
One of the main objectives of the CSST is to protect the lives, health and physical well-being of workers. In establishing its new intervention framework, the CSST has tried to revise the way in which inspections are carried out and the factors considered in determining whether a charge should be laid and how large a fine will be sought.
Framework for issuing offence notices
This framework is the cornerstone of the changes made by the CSST in 2012. Its other objective, which is acknowledged to varying degrees, was to reassure employer associations about the approach the CSST would be taking to the use of these harsh fines.
The policy—it being indeed a policy and not a regulation or statute—defines the role of the various parties at the CSST. For example, while CSST counsel is the one who decides whether there is sufficient evidence to initiate a prosecution, the regional director is the one who decides whether it is advisable to do that. Once the prosecution has been initiated, then, in negotiations between the parties, whether to pursue the prosecution or not, the regional director is also the one who decides, applying the criteria in the policy,
To perform that role, the regional director of the CSST must consider the evidence and the relevant facts that have been brought to his or her attention. A number of criteria are applied in the analysis:
- the seriousness of the offence;
- the particular circumstances of an offence;
- the accused’s track record of occupational accidents and diseases;
- the accused’s track record of interventions by CSST inspectors;
- the accused’s penal record;
- cooperation on the part of the accused;
- how well occupational health and safety issues were managed prior to the offence and the intervention by the CSST;
- whether additional measures have been taken by the accused since the offence.
The factors considered by the CSST and the weight it assigns to each one will vary, depending on the circumstances of each case, and the unfortunate result is that some people say the CSST often relies on whatever criteria it likes to reject an offer to settle and pursue a charge or maintain a claim for a particular level of fine.
This policy of opportunism is applied to offences committed both on constructions sites and in establishments.
Defences
Obviously, if the CSST considers prosecution to be necessary, the business has to decide whether to plead guilty or not guilty. All defences available in criminal law, including Charter arguments, may be raised. Some of them are as follows.
- Argue that there is no evidence that the accused is really the principal contractor, the employer or a worker (employment relationship);
- Argue that the existence of a danger has not been proved beyond a reasonable doubt;
- Prove that the business fulfilled its three duties in relation to OHS:
- the duty of foresight: to identify specific risks in the business and the industry in which it operates;
- the duty of effectiveness: to implement concrete, effective safety measures in order to reduce risks and eliminate dangers at the source. This duty also calls for monitoring the application of those measures by workers;
- the duty of authority, which requires immediate action by the employer where the safety rules are not followed. This duty calls for disciplinary action to be taken, if necessary.
- Prove that the worker’s conduct was unforeseeable, in spite of the measures taken;
- Establish mistake of fact: a situation that would have made the act or omission on which the charge is based innocent if it had actually existed;
- Prove that there was an event outside the employer’s control or that it was impossible for the employer to act;
- Argue that the employer was misled by an agent of the government, such as a CSST inspector;
- Make procedural arguments: whether deadlines considered to be reasonable under the Canadian Charter of Rights and Freedoms were met, failure by the CSST to disclose exculpatory evidence, etc.
It will be up to a judge of the Court of Québec, Criminal and Penal Division, to decide whether the employer is guilty and what the amount of the fine will be.
Conclusion
Although the amount of fines may represent an additional problem for employers facing penal charges relating to industrial accident prevention, there are new avenues available now to avoid the full weight of penal proceedings.