Two recent decisions, one from the Ontario Court of Appeal, provide some guidance with respect to how post-accident conduct will affect a company’s liability and sentencing when charged with a regulatory offence under the Occupational Health and Safety Act.
In R. v. Reliable Wood Shavings Inc. the Court stated that post-accident “fixes” should not be taken as an admission of liability but can be considered in determining what were appropriate precautions in the circumstances. Justice Bourque noted at paragraph 91 as follows:
I believe that I can look at post accident conduct in assessing what was reasonable in all of the circumstances. What I cannot do is treat them as an admission of liability.
The company was ultimately found guilty of four offences under the Occupational Health and Safety Act, however at the sentencing stage, the Court’s decision considered the employer’s post-accident fix to be a mitigating factor in determining the appropriate fine.
The decision of the Ontario Court of Appeal in Ontario (Labour) v. Flex-N-Gate Canada Company provides a useful contrast. In this case the Court held that complying with an inspector’s order after an accident should not be a mitigating factor in terms of sentencing:
Rewarding an employer for taking corrective action only in response to an inspector’s order reduces an employer’s incentive to take this action before an accident occurs.
However, consistent with the Reliable Wood Shavings case, the Court goes on to state that going above and beyond an inspector’s order or conducting post-accident fixes without an inspector’s orders may be considered a mitigating factor in sentencing:
If, after having committed a crime, an offender does some laudable act that he or she is not statutorily required to do – in other words, “does the right thing” – a court may take that act into account in sentencing the offender. The act may be seen as mitigating the offender’s moral blameworthiness or as a step towards the offender’s rehabilitation.
Taken together, these cases emphasize the importance of employers being proactive with their safety procedures both before and after accidents.