Ontario (Minister of Labour) v. Flex-N-Gate Canada Co., 2014 ONCA 53

• Judge: Laskin, Tulloch and Strathy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 27, 2013
• Jurisdiction: Ontario
• Citations: 2014 ONCA 53;(2014), 315 O.A.C. 66 (CA)

Ont. v. Flex-N-Gate Can. Co. (2014), 315 O.A.C. 66 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JA.030

Her Majesty the Queen in Right of Ontario (Ministry of Labour) (appellant) v. Flex-N-Gate Canada Company (respondent)

(C52732; 2014 ONCA 53)

Indexed As: Ontario (Minister of Labour) v. Flex-N-Gate Canada Co.

Ontario Court of Appeal

Laskin, Tulloch and Strathy, JJ.A.

January 23, 2014.

Summary:

An employer breached the Occupational Health and Safety Act resulting in a workplace accident. A government inspector investigated the accident and ordered the employer to comply with the Act. The employer did so. The employer was convicted of two offences under the Act: (1) failing to ensure that material was moved in a manner that did not endanger the safety of a worker and (2) failing to provide information, instruction and supervision to protect the health and safety of workers. The justice of the peace imposed a $50,000 fine, $25,000 for each offence. The employer appealed both its convictions and sentence.

The Ontario Superior Court of Justice dismissed the conviction appeal, but allowed the sentence appeal. The court did not change the amount of the fine for each offence ($25,000), but made the fines concurrent, meaning that the employer had to pay only $25,000. The court relied on the employer's "corrective actions" as a mitigating factor. The Crown was granted leave to appeal on the following issues: (1) mitigation after an order has been made by an inspector under the Act; and (2) concurrent fines under provincial legislation.

The Ontario Court of Appeal allowed the appeal.

Trade Regulation - Topic 7902

Industrial safety - Particular offences - Sentences - Considerations on imposing sentence - An employer breached the Occupational Health and Safety Act resulting in a workplace accident - A government inspector investigated the accident and ordered the employer to comply with the Act - The employer did so - The employer was convicted of two offences under the Act - The justice of the peace imposed a $50,000 fine, $25,000 for each offence - The appeal court judge made the fines concurrent, meaning that the employer had to pay only $25,000 - She considered the employer's compliance with the inspector's orders as a mitigating factor on sentence - She held that the employer ought to be "rewarded" for doing "the right thing" - The Ontario Court of Appeal allowed the Crown's appeal - The court held that "[t]he court should not have discretion to treat an employer's post-offence compliance, though statutorily required, as a mitigating factor on sentence. Doing so would undermine one of the most important goals of the [Act] - accident prevention - and the statute's most important sentencing principle - deterrence." - An employer's corrective action taken in response to an inspector's order was not a mitigating factor on sentence - See paragraphs 15 to 34.

Trade Regulation - Topic 7908

Industrial safety - Particular offences - Sentences - Fines - An employer breached the Occupational Health and Safety Act resulting in a workplace accident - A government inspector investigated the accident and ordered the employer to comply with the Act - The employer did so - The employer was convicted of two offences under the Act - The justice of the peace imposed a $50,000 fine, $25,000 for each offence - The appeal court judge made the fines concurrent, meaning that the employer had to pay only $25,000 - The Ontario Court of Appeal allowed the Crown's appeal - In proceedings under the Criminal Code, the court lacked jurisdiction to impose concurrent fines - A court could impose concurrent custodial sentences for two or more counts, but if the sentence was a fine, it had to impose separate fines for each count, but ensuring that the overall fine was appropriate - The court imposed these principles to proceedings under the Act - There was no rational basis not to - Accordingly, the court reinstated the total fine of $50,000, $25,000 for each offence - See paragraphs 35 to 38.

Cases Noticed:

R. v. Ellis-Don Ltd. et al. (1990), 42 O.A.C. 49; 1 O.R.(3d) 193 (C.A.), revd. [1992] 1 S.C.R. 840; 134 N.R. 236; 53 O.A.C. 312, refd to. [para. 20, footnote 4].

R. v. Cotton Felts Ltd. (1983), 2 C.C.C.(3d) 287 (Ont. C.A.), refd to. [para. 22].

R. v. Inco Ltd. (2000), 132 O.A.C. 268 (C.A.), refd to. [para. 22].

R. v. Echo Bay Mines Ltd. (1980), 12 C.E.L.R. 38 (N.W.T. Terr. Ct.), refd to. [para. 24].

R. v. Van Waters & Rogers Ltd. (1998), 220 A.R. 315; 1998 ABPC 55, refd to. [para. 25].

R. v. Ward (1980), 56 C.C.C.(2d) 15 (Ont. C.A.), refd to. [para. 36].

Counsel:

Gráinne McGrath and Jason Tam, for the appellant;

Gino Morga, for the respondent.

This appeal was heard on June 27, 2013, by Laskin, Tulloch and Strathy, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Laskin, J.A., on January 23, 2014.