In the recent decision in Ontario (Labour) v New Mex Canada Inc., the Ontario Court of Appeal found that it may be appropriate to impose harsher sentences for offences under the Occupational Health and Safety Act (the “OHSA”) where offenders’ conduct shows elevated “moral blameworthiness”.

The facts of the case were tragic. In 2013, an employee fell to his death from an elevated order picker in a Brampton furniture warehouse. He was not wearing personal protective equipment and had received no safety training, despite it being known to his employer that he suffered from epilepsy and was prone to sudden faints.

The employer and two of its directors were charged with a number of offences under the OHSA. The sentencing Justice found that the directors’ conduct rose to “the highest level of negligence” and their elevated moral blameworthiness warranted a harsher than usual sentence: 25 days’ imprisonment.

The directors successfully appealed and each received a fine of $15,000 in lieu of imprisonment. The appeals Judge found that the sentencing Justice made a number of errors of law, among them considering moral blameworthiness an aggravating factor in sentencing offenders under the OHSA.

The Crown appealed. The Court of Appeal dismissed the appeal, but disagreed with the appeals Judge (and agreed with the sentencing Justice) on the issue of elevated moral blameworthiness in sentencing offenders under the OHSA. The Court stated that “where the moral blameworthiness of a particular offender increases, so too can the penalty imposed.”

Accordingly, directors and officers should take note: sentencing judges now have clear appellate authority to impose harsher sentences for OHSA offences where offenders’ conduct displays elevated moral blameworthiness.

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