Not Seeing Eye-to-Eye

Organizations and workers who plead guilty and throw themselves at the mercy of the courts are likely to emerge in a better financial shape than accepting a fine from Ontario’s comparatively heavy-handed workplace safety regulator, so says a recent report by two employment lawyers in Toronto.

These findings are drawn from a paper, 68 Per Cent of Companies Plead Guilty to Occupational Health and Safety Act Charges (and 8 Other Interesting Findings), co-authored by Adrian Miedema and Christina Hall, both lawyers at Fraser Milner Casgrain LLP in Toronto. The paper examined unpublished data on prosecutions under the Occupational Health and Safety Act from January 2009 to June 2010, obtained from Ontario’s Ministry of Labour (MOL) through a Freedom of Information request. Prosecutions during the 18-month period covered by the study involved a total of 863 defendants, comprising 592 corporations and 271 individuals.

This disconnect — court fines were on average 45 per cent less than those from the ministry — could indicate the courts believe the penalties meted out by the MOL are too punitive, and should give the ministry pause as to whether or not the fines they are issuing are fair, Miedema suggests.

“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,” he says.

SMALL PICTURE

For those facing charges, however, the disparity in the value of fines between those imposed by the courts and the MOL may not be clear at the outset. Only 17 per cent of individuals and nine per cent of corporations that pleaded guilty allowed the court to decide their punishment, resulting in the average court fine being approximately $19,000 less than those issued by the ministry.

These numbers may not reflect the bigger picture, says Jeremy Warning, an oh&s and employment lawyer with Heenan Blaikie in Toronto. He says he suspects that many of the cases where the fine amount was decided by the courts involved minor injuries, or cases “at the lower end of the severity scale.”

Another finding is the negligible difference between fines for companies who fought their charges through a trial and those who negotiated with the ministry. “The MOL tends to give effectively no ‘discount’ to companies for pleading guilty and avoiding a trial; fines imposed by the courts after a corporation has fought all the way through a trial tend to be only four per cent higher than fines negotiated with the Ministry of Labour,” the study notes.

It went so far as to suggest that corporations, supervisors and workers facing workplace safety charges should consider letting the court decide the amount of the fine, “or in appropriate cases, the entire case.”

Miedema notes the mentality for companies is often that a lesser fine will result if companies negotiate a plea bargain with the ministry — although the penalty for those that fought the charges does not include lawyers’ fees. “That’s always got to be part of the consideration in any lawsuit, whether it’s a civil case or a prosecution, what the cost is going to be of going to trial,” Miedema says, also citing the potential outcome as part of the consideration.

A general lack of awareness about the disparity in penalties issued by the court and the labour ministry could explain why only six per cent of all cases are taken to trial. Miedema says when a guilty plea is submitted, the court approves the plea and arranges a fine without having to analyze the case.

“Because so few actually go all the way to trial where the court has to make a decision and analyze it, there are very few cases that actually get published that are of helpful precedence to employers,” he notes.

ON THE SCALE

While the study’s findings may serve as reference material for defence lawyers when demonstrating to their clients the various possible outcomes associated with an occupational health and safety charge, Warning says the decision on how to respond ultimately rests with the client and involves the consideration of a host of related factors.

“These statistics are interesting to read, but how a case is handled, of course, requires very detailed consideration of all the facts and factors that exist in the case — not only the evidence that the prosecution would have, but the evidence that would be called by the defence,” Warning adds.

Miedema thinks the study helps encourage employers and organizations to weigh their options when faced with a health and safety charge, and challenge the assumption that a guilty plea would likely result in a lesser fine.

The MOL declined to comment on the study, noting that it relates “to the exercise of prosecutorial discretion by Crown counsel, as well as sentencing decisions imposed by the courts,” ministry spokesperson Matt Blajer says.

Vernon Edwards, director of occupational health and safety with the Ontario Federation of Labour in Toronto, says that while the data presented in the study was interesting, he was not pleased with the idea of companies performing a cost-benefit analysis on workers’ safety. “But that’s the way the world works. Companies will do a cost-benefit analysis,” Edwards quips. “It doesn’t surprise me that they have said that in the article.”

That said, Edwards is of the mind that while higher penalties may serve as a greater deterrence against unsafe practices, knowing that a lower fine is possible would not necessarily lead to companies taking more risks or have a direct impact on occupational safety. “The deterrence is in knowing what the ministry is prosecuting and their chances of getting caught,” Edwards suggests.

And the fact that a fine handed down by the courts may be lower than that issued by the ministry does not mean the lower fine is unjust or inappropriate. Warning explains that in cases where the issue of penalty has been argued before a court, there is a neutral arbiter of fact and the penalty imposed is appropriate in the circumstances. 

“Because a defendant engages in their right of the adversarial system to advocate for themselves and for a penalty they believe to be reasonable in the circumstances ought not to be taken to [be] a conclusion that this is a strategy designed to minimize fines and dilute the deterrent effect of the fine,” Warning argues. “I don’t think that was the intent of the article, and I don’t think that is the intent of any council practicing in the area.”  

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