Highest Ever Fine Imposed

EP Update - August 26, 2002

In a recent decision of the Ontario Court of Justice, an Officer/Director of Don Burns Excavating was fined $50,000 for two violations of the Occupational Health and Safety Act which resulted in the deaths of two workers, who were killed when the trench they were working in suddenly collapsed on them.

The official was found guilty of failing, as an officer and director, to take all reasonable care to ensure that the company shored or sloped a trench in accordance with the Regulations for Construction Projects; and, failing, as an officer and director, to take all reasonable care to ensure that the company provided information, instruction and supervision to a worker. The $50,000 fine was the highest fine ever imposed against a company officer or director under the Act.

This case makes it clear that officers and directors must make the necessary enquiries and take all reasonable care to ensure that the corporation complies with the Act and the regulations.

The duties imposed on officers and directors, which were added to the Occupational Health and Safety Act in 1990, are intended to encourage corporate responsibility to ensure compliance.

There is some indication in earlier case law that directors of a corporation are subject to greater fines than supervisors (see: R. v. Raglan Industries Inc., [1994] O.J. No. 3998 (Prov. Div.)), and that an aggravating factor is whether the officer/director had specific knowledge of a problem or potential infraction, which he or she neither assessed nor rectified (see: R. v. A.D.M. Steel Inc., [1995] O.J. No. 4789 (Prov. Div.)).

In order to comply with the obligations under the Occupational Health and Safety Act, and to avoid conviction, officers and directors of a corporation need to make themselves aware of any and all health and safety concerns, and ensure that policies and procedures are being properly implemented and followed. It is also the responsibility of officers and directors to be familiar with the requirements of the Act and, in particular, with any special requirements (for example, confined space requirements) in order to ensure safety in the workplace.