Two OHS Appeal Decisions To Be Aware Of

Two recent appeal decisions relating to serious Occupational Health and Safety ("OHS") prosecutions are ones to be aware of for every Occupational Health and Safety professional, Human Resources professional, In-house counsel, and Operations Managers responsible for implementing health and safety management systems.

The first was the appeal decision in the Sunrise Propane Energy Group prosecution. Sunrise had been found guilty, after a 14 day trial, of seven charges under the Environmental Protection Act and the Occupational Health and Safety Act, both of Ontario. Justice Akhtar, of the Superior Court of Justice, held that both the conviction and the sentence at the trial court was reasonably supported by the evidence, legal principles, and therefore was upheld. The Court held that the explosion and fire, that involved a fatality, at the Sunrise Propane Energy Group Distribution Centre in the north-east part of Metropolitan Toronto, did result in the contraventions of both the Environmental Protection Act and the Occupational Health and Safety Act.

With respect to the sentence appeal, the heavy double-barreled penalty, totalling $5.3 million, was also upheld by the Superior Court of Justice. Affirming the fines and penalties, the Court said, "it is clear that an Appellant Court must give considerable deference to a sentence imposed by a trial judge and only interfere if that sentence is manifestly unfit ... the widespread damage and effects caused by the Appellants' reckless behaviour in conducting truck-to-truck transfers without license and with full knowledge of the risks associated with the practice ... there is nothing in the trial judge's decision that indicates error and I agree with the Respondent that the fine was consistent with other fatality cases"1

Clearly the aggravating factors of a fatality, as well as operating without a license, as well as unsafely, were major factors in the harsh penalty issued by the trial court, and affirmed on the appeal.

The second appeal of note involves the tragedy of a criminal rampage in Moncton, New Brunswick, when four RCMP constables were killed in a targeted shooting, by gunman Justin Bourqe in Moncton, New Brunswick. After the tragedy, the Federal Occupational Health and Safety Regulator investigated and laid charges under the Canada Labour Code, Part II. The Royal Canadian Mounted Police defended the charges at trial, but were convicted. The RCMP was ordered to pay $550,000 for failing to...