TORONTO (Canadian OH&S News)
Workers and corporations who admit their guilt and throw themselves at the mercy of the courts rather than accepting the fine from Ontario’s comparatively heavy-handed safety regulator are putting themselves in a much better position financially, says a new research report from two Toronto employment lawyers.
This disconnect in the fines handed down — the court fines were on average 45 per cent less than those from the Ministry of Labour (MoL) — could be evidence that the courts find the ministry too punitive in its penalties, and should give the ministry pause as to whether the fines they are requesting are fair, says Adrian Miedema, an employment lawyer with Fraser Milner Casgrain LLP in Toronto and one of the study’s authors.
“Ontario’s fines have risen rather substantially over the past decade, and this may reflect that some justices of the peace have said this is just too high, they’re not fair numbers for employers, particularly for employers that have good safety programs, that respond properly when there’s an accident and co-operate when there’s an investigation,” says Miedema.
“When employers decide to plead guilty, they need to take a hard look at whether they should let the court set the fine or negotiate with the ministry,” he says. For those facing charges, the disconnect in the value of fines handed down may not be clear: only 17 per cent of individuals and nine per cent of corporations that pleaded guilty allowed the court to decide their punishment, resulting in average fines that averaged about $19,000 less than the MoL’s approximately $42,000 average.
Miedema says this lack of awareness could be an effect of only six per cent of all cases being taken to trial. “Many of the decisions are granted orally by the provincial court, most of them don’t show up in the case databases, so we have very, very few of the decisions being used as precedents in future cases,” he says.
The paper, titled “68% of Companies Plead Guilty to Occupational Health and Safety Act Charges (and 8 Other Interesting Findings)” was co-authored by Miedema and Christina Hall, another lawyer at Fraser Milner Casgrain. It was the result of a Freedom of Information request to the MoL for data on prosecutions under the Occupational Health and Safety Act from January 2009 to June 2010. Prosecutions during the 18-month timeframe involved a total of 863 defendants — 592 corporations and 271 individuals.
“I was aware of the fact that the Ministry of Labour kept these reports on each prosecution and I thought to myself, it would be interesting to put them all together and paint a high-level picture of what happens when somebody is charged,” Miedema says.
Another part of the picture the study paints is the negligible difference between fines for companies who fought their charges all the way through a trial and those who negotiated with the MoL — the mentality for companies is often that a lesser fine will result if companies negotiate a plea bargain with the ministry, Miedema says — though the fine amounts for those that fought the charges does not include lawyers’ fees.
Trial costs, legal fees need to be considered
The cost of going to trial, legal fees and potential outcomes need to be considered, Miedema stresses. “All of these things need to be weighed together and some of the assumptions that employers have had in the past about ‘what kind of fine am I likely to get, statistically speaking, if I go to trial rather than pleading guilty,’ some of those assumptions appear not to be correct.”
Other notable findings from the study include:
— Corporations were most likely to plead guilty to charges (68 per cent of cases), while individuals most often saw their charges withdrawn (56 per cent of cases);
— Two-thirds of companies that take their charges to trial are ultimately found guilty. For individuals, the odds of a guilty verdict is split fifty-fifty;
— There is an 82 per cent chance at least one of the parties involved will be convicted if charges are handed down;
— Eighty-five per cent of charges involved actual or potential worker injuries;
— The construction industry represents approximately one-third of all defendants charged under the safety act;
— There are very few repeat offenders: only one in 10 defendants had a prior conviction;
— Predictably, fines for more serious injuries tended to be higher — fatalities had the highest fines, followed by major injuries, minor injuries, potential injuries and no injuries, respectively.
The MoL refused to comment on the study until they have had an opportunity to review it, a spokesman says.