ARE YOU MAINTAINING A SAFE WORKPLACE?
Officers, Directors, and Managers/Supervisors in Ontario Increasingly Face Prosecution for Breaching Workplace Health and Safety Obligations
Although most Ontarians know that employers can face serious penalties for failing to meet workplace health and safety obligations, relatively few are aware that the directors (i.e., owners and/or board members), officers (including supervisors and managers), and managers/supervisors of companies and organizations, can be personally prosecuted for failing to meet such obligations and face massive fines and even imprisonment.
Nonetheless, directors, officers, and supervisors/management are increasingly learning this the hard way due to a recent trend towards greater prosecution for health and safety violations in Ontario. This trend is illustrated by two recent Ontario cases where senior personnel were convicted for breaching their workplace health and safety duties. The first case involved a director/owner of a company being convicted under the Occupational Health and Safety Act (the “OHSA” or Act) and personally fined $100,000, and the other involved a supervisor being convicted under the Criminal Code for criminal negligence causing death (who will likely receive significant jail time once he is sentenced).
In light of this trend, it is now more important than ever for officers, directors, and manager/supervisors to do their part in ensuring a safe and healthy workplace.
Background
All Ontario employers have a broad duty to take every reasonable precaution for the health and safety of their workers, in addition to a myriad of more specific health and safety obligations. Likewise, all Ontario workers, supervisors/managers, officers, and directors also have duties under the OHSA, as part of the Act’s “internal responsibility system” (“IRS”). In a nutshell, the IRS means that everyone in the workplace has a role to play in keeping workplaces safe. Notably, section 32 of the Act requires directors and officers of corporations to ensure that the corporation complies with the OHSA.
Where a person fails to comply with the OHSA, they can be liable to fines and/or imprisonment upon conviction. In particular, an individual who is not an officer/director and who violates the Act’s requirements may be fined up to $500,000 and be imprisoned for up to twelve (12) months, and a corporation can be fined up to $2,000,000. On the other hand, an officer or director who is convicted of failing to ensure that a corporation complies with the Act under s. 32 is liable to a fine of up to $1,500,000 and up to twelve (12) months of imprisonment.
Additionally, beyond charges under the OHSA, supervisors/managers, officers, and directors who negligently fail to protect the health and safety of workers can also face criminal prosecution under the Criminal Code (the “Code”), especially where their negligence causes the death of a worker. In particular, it is criminal negligence under s. 219 of the Code where a person does or omits to do anything that it is their duty to do, and where they show a wanton or reckless disregard for the lives or safety of other persons. Further, under s. 220 of the Code, a person who causes the death of another person by criminal negligence may be imprisoned for up to four (4) years (or longer in exceptional circumstances).
OHSA Conviction of Ontario Tank Truck Manufacturer and Its Owner
On April 5, 2024, an Ontario tank truck manufacturer and its owner were convicted of OHSA violations in relation to a deadly workplace accident in January 2022, in which explosions resulted in the tragic deaths of six workers and critical injuries to another worker.
The explosions occurred in Eastway Tank, Pump and Metre Ltd.’s (“Eastway”) fabrication shop while workers were performing a “wet test” on a newly built tanker truck, which involved pumping diesel fuel into the tank of a truck to test for leaks. Although Eastway had a standard operating procedure which prohibited gasoline in the fabrication shop, the diesel fuel tanks in the shop were contaminated with gasoline, and this cross-contamination ultimately caused vapors to ignite and the resulting explosions.
Eastway pled guilty to and was convicted of failing to take every reasonable precaution in the circumstances for the health and safety of the workers, by failing to ensure the diesel fuel to be used in the wet testing was not contaminated. It was also convicted of failing to provide adequate information, instruction, and supervision to the workers on safe fuel storage and handling procedures, to protect the workers from the hazard of diesel fuel being contaminated with gasoline in relation to wet testing. Similarly, the owner of Eastway, Neil Green, pled guilty to and was convicted of failing to ensure that the company complied with the OHSA’s requirements.
Eastway was ultimately fined $750,000 and Mr. Green was fined $100,000 for these OHSA violations, including a 25% victim surcharge. Very notably, Mr. Green was charged in 2022, shortly before the OHSA was amended to increase the maximum penalty for officers/directors under the OHSA from $100,000 up to $1,500,000. Accordingly, Mr. Green was fined close to the maximum amount ($80,000, plus a $20,000 victim surcharge), and he may have been fined far more if he was charged after the aforementioned OHSA amendments.
Trucking Company Supervisor Convicted of Criminal Negligence Causing Death
On July 12, 2024, the supervisor of an Ontario trucking company was convicted of criminal negligence causing death under the Code in relation to an employee that he supervised dying in a single vehicle collision on September 22, 2020.
Denis Garant tragically died when the left front tire of the dump truck that he was driving exploded, causing him to veer off a roadway and into a tree. The truck was owned by Mr. Garant’s employer, Ecuacan Excavating Inc. Crucially, Mr. Granat had raised serious concerns about the truck having steering problems with his supervisor, Milton Urgiles, the day prior via text message. Mr. Urgiles responded by simply telling Mr. Garant where to work the next day using the truck, without addressing his concerns.
After the crash, it was found that: (i) the front tires of the dump truck that Mr. Garant drove had no tread left on the interior half of either tire (in violation of applicable regulations); (ii) this wear likely occurred over a significant period of time due to an alignment issue, and the lack of tread was visibly obvious; (iii) these problems likely caused the steering issues that Mr. Garant reported; and (iv) these problems resulted in the tire exploding and the accident.
Mr. Urgiles was ultimately convicted of criminal negligence causing Mr. Garant’s death. This was because the court found that: (i) he had a duty as a supervisor to take reasonable steps to prevent Mr. Garant from suffering bodily, including by ensuring that the truck was properly maintained and roadworthy; (ii) Mr. Urgiles’ duty required him to take the truck to a mechanic after Mr. Garant reported the steering problem; (iii) Mr. Urgiles’ failure to have the truck inspected represented a “marked and substantial departure” from the conduct of a “reasonably prudent supervisor in the circumstances”; and (iv) Mr. Urgiles’ omission to have the truck inspected constituted a wanton and reckless disregard for Mr. Garant’s life, and he thereby caused his death.
Mr. Urgiles has yet to be sentenced, but he faces a maximum sentence of four years of imprisonment under the Criminal Code.
The Bottom Line
The recent convictions discussed above serve as a warning for Ontario directors, officers, and managers/supervisors that they are increasingly likely to be personally prosecuted under the OHSA and/or Code if they fail to meet their workplace health and safety obligations.
Employers should ensure that their directors, officers, and managers/supervisors understand their workplace health and safety duties and the penalties for failing to meet them, as this will provide even more incentive for them to meet their respective obligations to keep workers safe, which is in everyone’s best interests.
If you have any questions regarding workplace health and safety obligations or require assistance in defending against prosecution under the OHSA, please do not hesitate to contact us for expert legal advice and representation.
