Canadian Occupational Safety

Repeat OHS offender sentenced to jail time in Nova Scotia Deliberate, wilful non-compliance not taken lightly F or the very fi rst time in Nova Scotia, a business owner was sentenced to jail time for charges under the provincial Occupational Health and Safety Act. In May, the Nova Scotia Provincial Court dealt with the case of Joseph Isnor who was charged on three counts under the act for incidents that began in 2010. Isnor repeatedly failed to implement and enforce applicable fall protection rules on work sites under his supervision while operat- ing two roofi ng companies called Roof Masters and Union Roofi ng. Isnor was a repeat offender who had previously failed to pay fi nes and ignored sentencing orders. On May 24, he was sentenced to 15 days in jail for repeat offences under the act. Isnor's prison sentence was made up of fi ve-day sentences for each of the three counts. These sentences are to be served over the course of consecutive weekends and while Isnor is entitled to keep working, he is required to notify the Department of Labour and Advanced Education prior to him or his crew members working at heights more than 3 metres. This decision affi rms that the possi- bility of jail time transcends the realm of criminal law and into that of OHS. Jail time is more likely to be appropriate where there is a prior record of convictions; diffi cult attitude; lack of remorse; deliberate or willful action; a serious offence; and quasi- criminal elements to the offence. On the other hand, jail time is less likely where there is a past history of work without incident; demonstration of remorse; an adverse impact on the guilty party; positive work history after the incident; willingness to take education courses on safety; and strong family support. In explaining why jail time was imposed, Alex Keavenney, the Crown attorney, implied that there needed to be more severe sanctions imposed against Isnor with previous sanctions proving to be futile, such as the fi nes Isnor refused to pay. There appeared to be a strong argument that any sanc- tion not involving jail time would be insuffi cient to ensure Isnor's future compliance with the act. A jail sentence sends a strong message to incorrigible safety offenders. Isnor's disregard for previous sanc- tions may also have been indicative of other aggravating factors such as a diffi cult attitude, lack of remorse and deliberate and wilful non-compliance with the act. An important take away from the Isnor decision is that cumulative conduct is taken into account when a sentence or order is imposed. In isolation, the safety offences commit- ted by Isnor's businesses would be unlikely to attract a sentence as severe as imprisonment. The Nova Scotia Department of Labour and Advanced Education noted the jail sentence imposed against Isnor is a sign that an increas- ing focus is being put on repeat offenders and dangerous cases. Fol- lowing the decision, the department also stated it is being more strategic in regards to which employers are tar- geted for inspection. Interestingly, the decision was ren- dered at a time when Nova Scotia labour investigators were doing a blitz to ensure construction sites across the province had proper fall protection equipment and procedures in place. Perhaps the timing of the decision serves as an example of a general atti- tude on the part of OHS regulators and courts who may be more will- ing to impose stricter sanctions for offences going forward. The Isnor decision is a warning to employers that any sanctions received under OHS legislation should be complied with and not taken lightly. Clearly, courts will not take kindly to workplace safety offenders that delib- erately disregard penalties imposed against them. The Isnor decision can also be taken as a warning that there may be severe consequences, including jail time, for repeated workplace safety infractions. Furthermore, employers should be informed of the aforemen- tioned factors in making decisions related to workplace safety. While some these factors will be viewed in a contextual manner by courts, it appears that courts will generally be less inclined to impose jail time for workplace safety infractions where the offender has displayed a commit- ment towards workplace safety outside of the incident in question. It should be noted the Isnor decision appears to be informed by general principles that relate to jail time in the OHS context and which also apply across Canada. Isnor's sentence appears to be consistent with existing OHS law in jurisdictions outside of Nova Scotia and, therefore, employers across Canada should be forewarned that courts in their jurisdiction may have the same authority to impose jail time where workplace safety offenders repeatedly fail to meet safety require- ments and aggravating factors are present. By way of example, in a 2014 OHS decision from Ontario, the court determined jail time would be the only effective deterrent for an offender who had four prior convictions under different regulatory legislation and had almost entirely avoided the fi nes that were levied. The Isnor decision has undoubtedly affi rmed jail time as a very real and substantial risk for employers in the con- text of OHS, and jail time has been recognized as a neces- sary deterrent in certain cases involving a repeat offender. Maurice Dransfeld is a lawyer in the Edmonton offi ce of McLen- nan Ross who provides advice to employers on a variety of labour and employment issues. He can be reached at mdransfeld@ mross.com or (780) 482-9223. This article was prepared with assistance from Manav Deol, an articling student at the fi rm. 12 Canadian Occupational Safety www.cos-mag.com MAURICE DRANSFELD LEGAL LANDSCAPE MAURICE DRANSFELD LEGAL Congratulations to the following OHS professionals who have recently been granted the Canadian Registered Safety Professional (CRSP) ® Professionnel en sécurité agréé du Canada (PSAC) ® designation. The BCRSP is a self-regulating, self-governing organization accredited by the Standards Council of Canada to ISO 17024 (Personnel Certification Body) and by BSI Management Systems to ISO 9001 (Quality Management System). Board of Canadian Registered Safety Professionals/Conseil canadien des professionnels en sécurité agréés 6700 Century Avenue, Suite 100, Mississauga, ON L5N 6A4 905-567-7198, 1-888-279-2777, www.bcrsp.ca James Aarts CRSP Sarah Abdul-Rasoul CRSP Muhammad Alamgir CRSP Vinaydeep Alvares CRSP Darryl Armoogum CRSP Lisa Barrow CRSP Rohan Bender CRSP Donald Bennett CRSP Tara-Ann Benoit CRSP Kamaljeet Bhangu CRSP Michael Boileau CRSP Kent Brandt CRSP Crystal Brazao CRSP Matthew Brewer CRSP Floyd Buhler CRSP Christopher Bulls CRSP Allison Burgess CRSP Jason Burjour CRSP James Carroll CRSP Brent Chopping CRSP Michelle Coghill CRSP Joy Craig CRSP Kelvin Curtis CRSP Gordon Denny CRSP Michael Derbawka CRSP Rosa Diaz CRSP Nicole Dierker CRSP Michael Doucette CRSP Tammy Duncan CRSP Richard Dunn CRSP Nigel Dunning CRSP Chijioke Egbuna CRSP Jim Elkins CRSP Andre Fagan CRSP John Faguy CRSP Michael Fedunec CRSP Berna Fleming CRSP Brandy-Lee Forbes CRSP Jesse Frost CRSP Stephen Garnett CRSP Valerie Gonda CRSP Kezia Grams CRSP Katherine Hahn CRSP Kourosh Hakimpour CRSP Bruce Hampton CRSP Bruce Hartery CRSP Perry Harvey CRSP Bradford Hassler CRSP Jennifer Hogan CRSP Brian Hooey CRSP Amanda Hussey CRSP Kamran Ismayilov CRSP Michael Jamal CRSP Sharmila Jayaprakash CRSP Richard Joa CRSP Paul Kelleher CRSP Lance Klassen CRSP Jennifer Koenig CRSP Michael Kuipers CRSP Doran Kunz CRSP Kevin Land CRSP Scott Langford CRSP James Leckie CRSP Stephen Legge CRSP Kelly Lehr CRSP Scott Lescak CRSP Jeffrey Love CRSP Lisa Lynn CRSP Brent MacDonald CRSP Steve MacDonald CRSP Mitch MacKenzie CRSP Barry Macooh CRSP Mark Malayko CRSP Kevin Martyn CRSP Jennifer McEnhill CRSP Samantha McFarlane CRSP David McKenna CRSP Scott McLay CRSP Dereck Mejias CRSP Kevin Miller CRSP Rosalind Anne Mitchell CRSP Tonya Nelson CRSP Geoffery Neville CRSP George Ebesoh Njuacha CRSP Colin Northrup CRSP Thomas Odinya CRSP Kyle Ollenberger CRSP Heera Pandey CRSP Tanya Perkins CRSP Rilyn Phillips CRSP Ryan Piercey CRSP Andrew Plaza CRSP Manuela Racki CRSP Bobby Radford CRSP Michael Reimer CRSP Kristin Reitan CRSP Sarah Riche CRSP Zane Roberts CRSP Benjamin Rombough CRSP Ricardo Romero CRSP Hossein Sardsiri CRSP Laura Scicluna CRSP Rumana Selim CRSP Carson Sexsmith CRSP Brikena Shima CRSP Michael Stefi CRSP Alexander Stuart CRSP Craig Stuart CRSP David Sweeney CRSP Randy Taylor CRSP Bob Tinsley CRSP Garry Towle CRSP Katlyn Ward CRSP Ryan Wells CRSP Teri Worth CRSP Allison Wyatt CRSP Samantha Yip CRSP June Younge CRSP Piotr Zerbe CRSP Board of Canadian Registered Safety Professionals

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