Can a Company Be Prosecuted under both OHS and Environmental Laws for the Same Incident? – Quiz

SITUATION A chemical company’s plant uses chlorine gas, a contaminant under provincial environmental law, in its manufacturing process. A large quantity of chlorine gas is inadvertently emitted through a piping array located directly under the area of the plant roof on which a worker is doing maintenance. He’s enveloped in the gas, which blinds and chokes him. The worker is able, however, to stumble to a ladder and descend to safety. He’s taken to the hospital, but returns to work the next day. Under provincial OHS law, the company is required to report this kind of incident to safety officials. In addition, the discharge of chlorine gas into the open air is also reportable to environmental officials under provincial environmental law. But the company doesn’t report the incident to any government officials. QUESTION Under which law(s) may the company be prosecuted for the incident?

1. OHS law only
2. Environmental law only
3. Either environmental law or OHS law but not both
4. Both environmental law and OHS law

ANSWER D.  The company may be prosecuted for violations of both environmental and OHS law. EXPLANATION This scenario is based on a case from Ontario. The facts of that case mirror the scenario except that the company did report the incident and the worker’s injury to the Ministry of Labour (MOL) but not to any environmental officials. The company was convicted of two environmental violations, including failing to report the discharge of a contaminant. The company appealed, arguing that reporting the incident to the MOL was sufficient. The Ontario Court of Appeal upheld the convictions. It explained that the environmental and OHS laws are both designed to protect the public. Environmental laws protect the natural environment and the people who live, work and play in it; the OHS laws protect workplaces and workers. So it’s not uncommon for incidents on worksites to trigger requirements under both sets of laws. The occurrence of an injury to a worker in the workplace triggered OHS reporting requirements; the release of a large amount of a hazardous gas into the open air triggered environmental reporting requirements. Thus, officials responsible for enforcing both sets of laws needed to be notified so they could investigate the cause of the incident and make sure that steps were taken to protect workers and non-workers from the hazards of similar incidents in the future, concluded the court. WHY WRONG ANSWERS ARE WRONG A is wrong because the company could be prosecuted for violating environmental law, too. When the plant vented the chlorine gas out of the building, it discharged a large amount of a contaminant into the open air. The fact that the only individual harmed by the discharge was a worker doesn’t mean that environmental law no longer applies. If the weather conditions had been different, for instance, many people could have been affected by the discharge. Thus, environmental officials had a legitimate interest in knowing about the incident so they could ensure steps were taken to prevent similar discharges in the future. B is wrong because the company could also be prosecuted for violating OHS law. No, the worker’s injuries weren’t serious and he was back at work the next day. But he was lucky—he could easily have fallen off of the roof while blinded by the chlorine gas. Thus, the company should’ve reported the incident to safety officials so they could ensure that workers are adequately protected from the hazard of gas discharges. C is wrong because the company could be prosecuted for both environmental and OHS violations for the same incident. The concept of “double jeopardy” doesn’t apply here. Double jeopardy is a defence that applies in criminal cases and bars a defendant from being prosecuted for the same crime based on the same facts twice. Although environmental and OHS violations are “prosecuted” and can result in fines and even jail, environmental and OHS laws are regulatory—not criminal—laws. In addition, prosecuting the company under both laws wouldn’t be prosecuting it for the same violation twice but for two separate and distinct violations: failing to report a workplace safety incident and failing to report the illegal discharge of a contaminant into the environment. SHOW YOUR LAWYER R. v. Dow Chemical Canada Inc., [2000] CanLII 5685 (ON C.A.), March 14, 2000