Winners & Losers – When does a Safety Offence Warrant a Six-Figure Fine?

The typical penalty imposed on companies (and individuals) convicted of safety offences is a fine. When determining the appropriate fine, courts generally consider: 1) the degree of culpability in which the defendant acted (for example, whether a company tried to comply with the law but failed or completely ignored its duties); 2) the injuries that resulted (thus, offences that caused fatalities are punished more harshly); and 3) deterrence (that is, the size of the fine necessary to deter both the company being sentenced and others from violating OHS laws in the future). The average fine imposed for a safety violation varies greatly across Canada. So when is a six-figure fine appropriate for a safety offence? Here are two safety prosecutions in which sentencing focused on whether a $100,000 fine was appropriate. $100,000 Fine too HIGH Facts A mechanic and two co-workers were repairing a shear machine used to cut sheets of metal. Blocks had been inserted in the machine to prevent the beam holding the top blade of the shear from moving. They replaced damaged bolts and “flipped” the blades. They then turned the shear back on and removed the blocks. The mechanic went into a pit under the shear to calibrate the clearance between the blades. A ram attached to the beam broke, causing the beam—which weighed about 20,000 pounds—to fall and hit the mechanic in the head. The company was convicted of a safety violation. The prosecution asked the court to fine it $100,000. Decision The Ontario Court of Justice ruled that a $100,000 fine was too high, cutting it to $80,000. Explanation The court considered the following: Culpability. The company spent $400,000 per year on safety programs and another $250,000 on safety consultants. It thought the calibration procedure the mechanic was using when he was injured was safe. He’d done it hundreds of times and never considered it unsafe. The JHSC also never identified the calibration process as hazardous. And a ram had never broken during maintenance work. Injuries. The mechanic hyperextended his neck and left shoulder and had to see a chiropractor for a year. But he could easily have been crippled or killed, noted the court. Deterrence. $80,000 is still a substantial fine and the court might have cut it down even more given the company’s extensive safety efforts and the relatively minor injury involved. But the company did have a prior safety violation from 1999. So a substantial fine was warranted. Deterrence was paramount, said the court, and the fine couldn’t be a “mere license fee for illegal activity.” Ontario (Ministry of Labour) v. Dana Canada Corp., [2009] ONCJ 11 (CanLII), Jan. 6, 2009 $100,000 Fine too LOW Facts Two workers for a sprinkler company had to install part of a sprinkler system on the ceiling in a stairwell of a new gym. The man lift they usually used didn’t fit in the stairwell. So the workers jury-rigged a materials lift by placing a pallet and strand board on its forks and then a ladder on top of the strand board. One worker climbed up the ladder while the other stood on the strand board steadying it. The materials lift tipped, causing both workers to fall. The company pleaded guilty to a safety violation and was fined $100,000. The prosecution appealed the sentence. Decision The Alberta Court of Queen’s Bench ruled that the $100,000 fine was an “unfit sentence” and more than tripled the fine to $350,000. Explanation The court considered the following: Culpability. The materials lift the workers used wasn’t designed or intended for lifting people. Using this equipment in this manner in a stairwell was “highly risky and negligent,” noted the court. This negligence was heightened by the lack of fall protection equipment. Injuries. The company’s negligence had tragic consequences. One worker was killed and the other was paralyzed from the chest down. Deterrence. “Serious consequences that come about because of a high degree of negligence call for a substantial fine,” said the court. The presence of these factors drives the fine close to the maximum ($500,000). In contrast, a fine of $100,000 doesn’t recognize the seriousness of the consequences of the degree of negligence exhibited in this case, added the court. R. v. Independent Automatic Sprinkler Ltd., [2009] ABQB 264 (CanLII), April 30, 2009