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Date:
2016.11.03

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THE EMPLOYERS' EDGE

Digging Deep – Vale Canada Limited fined $1 Million for OHSA violations

As most are aware, fines being levied under the Occupational Health and Safety Act (“OHSA”) have been on the increase for convictions. 

On October 24, 2016 a sentence of $1,000,000 was levied as a result of Vale Canada Limited pleading guilty after one worker died and another was critically injured while attempting to clear a jam in a rock-crushing machine at a plant near Sudbury.  In addition to the fine, the court imposed a 25-per-cent victim fine surcharge as required by the Provincial Offences Act. This is the second-highest fine imposed by a court in Ontario for contraventions of the OHSA. In 2013 Vale Canada Limited was convicted and fined $1,050,000 in the 2011 deaths of two workers at its Stobie Mine near Sudbury.

The incident took place at the company's rock-crushing facility located at 18 Rink Street in Copper Cliff, Ontario on April 6, 2014. The Ministry of Labour investigation found that there were no established procedures for removing broken or jammed materials from crushers, and that the electrical motor of the crusher had not been locked out, and no measures were taken to release the stored energy of the crusher.

Vale Canada Limited pleaded guilty to failing to ensure that gravity-stored energy was dissipated or contained while work was being done on the crusher, and to failing to provide information, instruction and supervision to a worker on a safe procedure. The company also pleaded guilty to failing to ensure that pinch points were guarded on the conveyor and crusher; these offences were not related to the fatality or injury.

A supervisor who was acting as a worker that day also pleaded guilty to failing to work in compliance with Ontario's mining regulation, and was fined $3,000 for his involvement.

As we have noted in our past blogs, not only have fines been increasing but jail time has been sought by the Crown in OHSA cases as well.  In R. v. Roofing Medics Ltd. a 2013 case, a total of 15 days of jail time was awarded after an employee fatally fell from a ladder while at work.  In 2014 jail time was again awarded in the case R. v. J.R Contracting Property Services.  In this matter the supervisor was sentenced to 45 days in jail after a worker fell from a roof and was paralyzed.

How does the court decide what the appropriate fine amount should be or when jail time is appropriate?  The court looks at a number of criteria for the fine amount:  the size of the company involved; the scope of the economic activity in issue; the extent of the actual harm done or the potential harm to the public; prior convictions and the maximum penalty as set out in the OHSA.  The primary factor however is that of general deterrence.  The courts have held that without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated.  It must not appear to be a mere licence fee for illegal activity.  The court has noted on more than one occasion that the sentence was largely awarded as general deterrence to have the industry take notice of the legislative requirements.  So the fine ordered on a matter may have more to do with other companies in the industry, rather than on the specific company charged.  Prior convictions will also play a part in increasing the fine amount or having jail time considered especially if the court feels that jail time would be the only effective deterrent.  The court examines both mitigating and aggravating factors.  Examples of factors that a court will take into consideration to mitigate against a jail term sentence are:

  1. No prior record of convictions;
  2. Past history of work without incident;
  3. Demonstrated remorse;
  4. Positive work history post incident;
  5. Willingness to take educational courses on safety; and
  6. Family support.

Aggravating factors that the courts will review to increase the likelihood of a sentence that would include incarceration are:

  1. Prior record of convictions;
  2. Difficult attitude;
  3. Lack of remorse;
  4. Deliberate or willful action; and
  5. If the offence possesses quasi criminal elements.

When facing OHSA orders or charges, careful consideration should be made on whether to appeal an order, or defend a charge.  Obtaining legal advice at the earliest step in the process will allow employers to know what options are available to them.

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