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The Ontario Court of Appeal recently considered the role of “moral blameworthiness” in the imposition of harsher sentences for regulatory offences in an occupational and health safety case.

What Happened?

The employer was a small business with 12 employees. 

On January 16, 2013, an employee fell to his death while attempting to retrieve merchandise in a Brampton, Ontario furniture warehouse where he worked. 

This led to charges under the Occupational Health and Safety Act (“OHSA”) against the employer and two of the employer’s directors (the “defendants”). Each of the three defendants pleaded guilty to two offences.

Based on its pleas, the employer was found guilty of:

•        failing, as an employer, to provide information, instruction and supervision to protect the health or safety of the employee, relating to fall protection and working from a height, contrary to OHSA, s. 25(2)(a); and 

•        failing, as an employer, to ensure that measures and procedures prescribed by s. 85(a) of the regulation Industrial Establishments, were carried out at the workplace, contrary to OHSA, s. 25(1)(c).

The directors were found guilty of:

•        failing, as directors, to take all reasonable care to ensure that the employer complied with OHSA, s. 25(2)(a) as required by OHSA, s. 32(a); and 

•        failing, as directors, to take all reasonable care to ensure that the employer complied with s. 85(a) of the regulation Industrial Establishments, also contrary to OHSA, s. 32(a).

Lower Court Decisions

The sentencing justice described the circumstances of the employee’s death as showing “the highest level of negligence” on the part of the defendants.

The sentencing justice accepted the pleas and imposed a total fine on the employer of $250,000: $125,000 per count. The Crown had asked for a total fine of $100,000 or higher. The sentencing justice imposed 25-day intermittent sentences of incarceration and 12 months of probation on both of the employer’s directors. 

All three defendants appealed their sentences to a provincial offences appeal court. The employer appealed the quantum of the fine. The directors appealed their sentences of incarceration but not the probationary orders.

The provincial offences appeal court judge (the “appeal judge”) allowed all three appeals and varied the sentences. He reduced the employer’s fine to a total of $50,000. He imposed $15,000 in total fines on both directors.

The Crown, seeking a restoration of the sentences imposed at first instance, appealed the decision to the Court of Appeal. 

Court of Appeal Decision

The court focussed on the issue of “moral blameworthiness” as a principle in sentencing for regulatory offences.

The court explained that the term “moral blameworthiness” refers to an offender’s level of culpability, determined primarily by his or her mental state, and that where the moral blameworthiness of a regulatory offender is elevated, it may be appropriate to elevate the sentence imposed. It stated that: “the relevance of moral blameworthiness in sentencing for regulatory offences follows necessarily from the application in regulatory offences of the fundamental sentencing principle of proportionality.” Simply put, the principle of proportionality requires that there be “just proportion” between the offence and the sentence.

The court stated:

“To be clear, the relevance of moral blameworthiness in regulatory sentencing does not mean that sentences should be reduced where higher levels of moral blameworthiness are not present. After all, by design, most regulatory offences can be committed by mere negligence, and some are absolute liability offences imposing punishment even in the absence of moral blameworthiness. The point is that where the moral blameworthiness of a particular offender increases, so too can the penalty imposed.

In my view, the appeal judge therefore erred in accepting as a sentencing principle the erroneous view that regulatory offences are not concerned with moral blameworthiness. Unfortunately, his later recognition that incarceration is more appropriate for wilful offenders or repeat offenders does not make this error harmless. This is because he went on, incorrectly, to discount the “very concerning lack of care for their employees” that was exhibited, on the basis that it was a moral blameworthiness consideration being offered in a regulatory case.”

Despite the finding that the appeal judge erred in his treatment of moral blameworthiness in sentencing for regulatory offences, the court dismissed the appeal finding no reason to interfere with the lower court decision.

Get Advice

If you have questions about unfair practices in the workplace, wrongful dismissal, or any other employment matter, contact the Mississauga employment lawyers at Campbell Bader LLP. We regularly advise both employers and employees on a wide range of issues that arise at work. Contact us online or by phone at 905-828-2247 to schedule a consultation.