Can a Company Be Penalized for Violating Both OHS Law and a Related Order?

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Situation

During a routine inspection, a government safety official notices that a company’s forklift violates certain requirements in the jurisdiction’s OHS law. As a result, the defective forklift is a danger to the workers who operate it. The safety official bars the company from letting workers use this forklift until the defects are fixed. But the company doesn’t have another forklift and the necessary repairs will take time. So it disobeys the safety official’s instructions and lets workers use the forklift anyway. When the official finds out, he asks a court to issue an order restraining the company and all workers from using the forklift until it complies with the OHS law. However, the company ignores the court order and continues using the defective forklift.

Question

For which violations may the company be penalized?

A. Violating the OHS law only

B. Violating the court order only

C. Either violating the OHS law or the court order but not both

D. Both violating the OHS law and the court order

Answer

D.  The company may be penalized for violations of both the OHS law and the court order barring use of the forklift.

Explanation

This scenario is based on a case from Manitoba involving violations of federal OHS law. After a trucking company disregarded a direction from a Health and Safety Officer prohibiting the use of a defective forklift until it was repaired, the Minister of Labour got an “injunction” from a court with the same restrictions. The company ignored the injunction. As a result, the court held the company in contempt for violating the injunction and penalized it. The company was also convicted and fined for two violations of the Canada Labour Code.

The company protested, arguing that its rights under the Canadian Charter of Rights and Freedoms were violated because it was punished twice for the same offence. The court didn’t buy this “double jeopardy” argument. The company wasn’t punished twice for the same offence; it was punished for two related but different offences. And the court explained that the goal in pursuing the company for each of these violations was different:

  1. The purpose of the contempt proceeding was to penalize the company for violating the court’s injunction and deter the wilful breach of court orders by this company and others; and
  2. The purpose of the OHS prosecution was to penalize the company for violating OHS law and deter this company and others from engaging in conduct that jeopardizes the safety of workers.

Why Wrong Answers Are Wrong

A is wrong because the company may also be prosecuted for violating the court order. It may appear that prosecuting the company for violating the OHS law would be sufficient punishment. After all, the court order was based on that violation anyway. But the courts can’t allow companies to simply disregard court orders without facing any consequences. Thus, the company not only can but also should be penalized for violating both the OHS law and the court order to send a clear message that neither kind of violation will be tolerated.

B is wrong because the company can be penalized for violating the OHS law, too. The safety violation is what spurred the court order in the first place. And the heart of the issue here is worker safety. Thus, to ensure that workers using the company’s forklift are safe, the company should also be prosecuted for the OHS violation.

C is wrong because the government doesn’t have to choose which violation to pursue against the company—it can prosecute the company for both. The concept of “double jeopardy,” which usually arises in criminal cases, doesn’t apply here. It’s true that the OHS violation and court order violation both relate to the company’s continued use of a forklift that didn’t comply with safety requirements. However, prosecuting the company for both violations wouldn’t be prosecuting it for the same violation twice but for two separate and distinct offences: violating the forklift requirements in the OHS law; and wilfully breaching a court order and thus acting in contempt.

Show Your Lawyer

Smith v. Canada (Minister of Labour), [2009] MBCA 90 (CanLII), Sept. 14, 2009