Law Times

Page 10 august 10, 2015 • Law Times www.lawtimesnews.com FOCUS Courts getting more aggressive on safety offences Judges sending a strong message by jailing executives in regulatory matters By Julius MelniTzer For Law Times hile jail sentences for corporate ex- ecutives convicted of criminal of- fences aren't at all unusual any- more, it's only in the last two years or so that courts have been incar- cerating executives and managers for regulatory offences, particu- larly for occupational health and safety violations. As Cheryl Edwards of Mathews Dinsdale & Clark LLP pointed out in a recent bulletin, all occupational health and safety legislation in Canada provides for imprisonment as a possible pen- alty for a breach. "The potential length of a cus- todial term varies from jurisdic- tion to jurisdiction and ranges from a potential one-month term (per offence) in Prince Edward Island to possible two-year terms (per offence) in Saskatchewan, Nova Scotia, the Yukon (where sentences of up to 2.5 and 3 years are available for subsequent of- fences), and under the Canada Labour Code," she wrote. Before 2013, the courts used jail sentences very rarely, most often in cases where a defendant didn't show up for trial and was convicted in absentia, where there was a prior history of convictions or where an agreement as to sen- tence existed. But a look at more recent juris- prudence on sentencing under the Occupational Health and Safety Act, commencing with the 2013 sentence imposed in R. v. Roofing Medics Ltd., suggests that corpo- rate executives and managers are at greater risk of landing in jail. In Roofing Medics, Paul Markewycz, a supervisor, was charged after a worker died from injuries sustained after falling from a ladder. After the accident, he misled the police as to the location of the accident, the circumstances under which it occurred, and the fact that it happened at a workplace. But Markewycz, who had no previous record, came clean about his lies before he was charged. Still, he was convicted of failing to ensure that his workers used a fall-arrest system and furnishing an inspector with false information. The Crown sought 45 days in jail. Although the court acknowl- edged that fines were the norm in such cases, a sentence of 15 days was nonetheless imposed. "The major reason a jail sentence is necessary for Mr. Markewycz is to deter others from ignoring the legislated fall- protection requirements," the court wrote. "Others in the industry must pause to consider that each and every time they embark on a roofing project, they may go to jail if one of their employ- ees does not use fall-protection gear. It is unacceptable for any roofer to be injured or to die as a result of a fall off a roof. These injuries and deaths can be prevented. Since the in- dustry has not been able to ac- complish prevention to date, it is appropriate for the Court to send a message that offenders will be dealt with harshly." But Norton Rose Fulbright Canada LLP's Madeleine Loewenberg, who was involved in the case, says that the fail- ings of the industry as a whole shouldn't have been taken into account and that Markewycz should have received more con- sideration for pleading guilty. Ontario (Ministry of Labour) v. J.R. Contracting Property Services also involved a supervisor, Teisha Lootawan, who had four prior convictions leading to fines and jail terms under the Environmen- tal Protection Act. Some $50,000 in fines remained unpaid. In 2014, a worker fell from a roof on Lootawan's watch. She misled the Ministry of Labour regarding the circumstances and ultimately was convicted of failing to ensure that an ad- equate form of fall protection was in place. The court imposed a 45-day sentence, citing her previous offences (albeit under another statute), the unpaid fines, and a continuing disregard for regulatory offences. Interestingly, the case was the first time a court had resorted to the Regulatory Modernization Act that allows convictions for regulatory offences other than the one under which an individ- ual is charged to be considered in sentencing. "This case should serve as a reminder that other Provincial Offences Act convictions may be relevant in the context of [Occu- pational Health and Safety Act] sentencing," says Loewenberg. The most recent relevant case is the unreported decision in R. v. New Mex Canada Inc., Baldev Purba and Rajinder Saini. Purba and Saini were directors of the company. After a worker fainted and fell from a modified forklift, the two directors were convicted of failing to take all reasonable care to ensure the worker had used fall arrest as required by the act's industrial regulations. Each was sentenced to 25 days in jail and 12 months' probation. "The court considered a num- ber of aggravating factors, includ- ing that neither Mr. Purba or Saini knew their obligations as directors or supervisors, neither was aware of the requirements in the fall protection regula- tions, they had lost their copy of the [act], workers had not been trained in health and safety or provided with fall arrest, and the deceased had fainted previously yet he was working on a forklift with a lack of safety features," says Loewenberg. Still, Loewenberg adds that New Mex appears to be "not that different" from many other ear- lier cases in which a fine, albeit a significant one, was imposed. "What may have made a dif- ference was the fact that the com- pany was closely held and had already paid a significant fine [of $250,000] that would already cause financial hardship to the accused," says Loewenberg. "But if the ability of the ac- cused to pay their fine inf luenced the court, that would have been both unusual and arguably in error." However that may be, it's not as if prosecutors will be seeking incarceration for all offences in which injury or death has oc- curred. "As a general rule, a Crown Prosecutor is more likely to seek a custodial sentence if a defen- dant has engaged in egregious conduct such that the defen- dant's behaviour is closer to an intentional act than negligence," wrote Edwards. But she also points out that prosecutors are becoming more aggressive in placing factual re- cords of all potentially aggravat- ing factors before the court. "This may indicate a more aggressive approach in which jail sentences will be sought more frequently in cases involv- ing serious injuries or risk of harm," wrote Edwards. LT What's Market is much more than a deal summaries database. Not only can you search, review, and compare expertly prepared summaries of recent deals and fi lings – you'll see exactly how this information impacts your deal. Do you need to determine the appropriate break fee for your deal? Use What's Market to quickly compare break fee provisions across multiple deals in a specifi c industry and create a custom report on market trends. This is just one example of the many ways What's Market on Practical Law Canada gives you the practical know-how to get your deal done faster and more effi ciently than ever before. Experience the What's Market difference • Find specifi c deals faster with custom advanced search • Get expert analysis and deal summaries with links to underlying agreements • Benchmark market practice and trends by comparing multiple deals or fi lings at once • Respond to clients faster with instant custom reports • Eliminate non-billable hours Start with Practical Law Canada. Sign up for a free trial at www.practicallaw.ca 00229IF-A50787 Introducing What's Market on Practical Law Canada Insightful analysis that goes beyond deal summaries W The courts are placing a greater emphasis on the need to ensure proper fall-protection measures are in place at worksites. Photo: N. Shubin/Shutterstock

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