Facing OHSA charges can be daunting, with severe fines and potential jail time on the line. What factors influence the court's decision on penalties? How can companies and individuals mitigate their sentencing? Are there specific steps that can lessen the impact of a conviction? This is the second blog in our OHSA series and aims to answer these critical questions, providing insights into the aggravating and mitigating factors that play a role in OHSA sentencing. We discussed the Due Diligence Primer in depth in our recent blog post.
Introduction
Section 66(1) of the Occupational Health and Safety Act ("OHSA") grants the court wide discretion in determining penalties for breaching the statute. Presently, corporations can face fines of up to $2,000,000 for OHSA convictions. Individuals may face fines reaching $500,000 and/or a maximum of 12 months in jail, while Directors or Officers of Corporations may encounter fines up to $1,500,000 and/or a maximum of 12 months in jail.
It's worth noting that these figures apply per offense, and OHSA prosecutions often involve multiple offenses. Typically, courts do not impose maximum fines, but for severe breaches, corporations may face fines of approximately $150,000 – $400,000 per offense, and individuals have been incarcerated for 1-3 months. Notably, these fines are on the rise with each iteration of OHSA amendments, which increase maximum fines.
Sentencing Factors
In determining fines or jail sentences, if applicable, the court considers aggravating and mitigating factors specific to the defendant and OHSA breaches. These factors, established in R. v. Cotton Felts Ltd., 1982 CanLII 3695 (ON CA) [Cotton], include the size of the company, the scope of economic activity, the extent of harm to the public, and the maximum penalty prescribed by statute.
Importantly, Cotton underscores the court's duty to impose a punishment serving as a general deterrence for all companies under the OHSA. The court may disregard submissions and impose fines/punishments as deemed justified. For instance, in Cotton, the court imposed a fine ten times higher than the Crown's proposal. Subsequent OHSA case law has expanded these factors, considering the defendant's regulatory history, remorse, and seriousness of offenses/behaviours.
One crucial factor in sentencing that is not understood well is a company's/individual's response to the charges. If an accused party goes above and beyond statutory compliance in response to OHSA charges, their fine and/or punishment may be mitigated significantly.
Conclusion
Understanding these sentencing factors is vital when facing OHSA prosecution to mount a robust defense. Conviction consequences can be severe, potentially leading to bankruptcy for small companies or jail time for individuals. While courts may impose sentences regardless of defendant pleas, presenting strong arguments which emphasize mitigating factors is crucial. This is especially so if the accused has no substantive defence available to them (they most often do not).
A proper sentencing strategy can make the difference between manageable fines and financially crippling or emotionally distressing punishments. Therefore, seeking qualified counsel to ensure compliance with OHSA during business operations is prudent. Such counsel can also assist in navigating the complexities of defending OHSA charges.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.