An Ontario employer has been fined $125,000 under the Occupational Health and Safety Act (“OHSA”) after it was convicted of failing to isolate workers following a COVID-19 outbreak. The marks the first prosecution of a COVID-19-related offence under the OHSA.
Background
The employer, Scotlynn Sweetpac Growers Inc. (“Scotlynn”), is a farming company located in Norfolk County. As a producer of essential goods, Scotlynn was permitted to continue operating amid the provincially-mandated lockdowns and business restrictions in response to the COVID-19 pandemic.
On May 28, 2020, the first positive case of COVID-19 at Scotlynn was identified. Over the next two days, the regional health unit declared an outbreak at Scotlynn and conducted more testing, which revealed 196 positive cases of COVID-19 among the 216 agricultural workers Scotlynn employed. Although the vast majority of those who tested positive were asymptomatic, three workers needed to be hospitalized, one of whom died as a result of the virus. Before being hospitalized, the deceased worker displayed pronounced COVID-19 symptoms, but was never isolated from the other workers. Rather, the worker was bedridden for several days in a bunkhouse where he lived with other workers. Scotlynn’s bunkhouses housed up to 50 workers.
Scotlynn was charged with, and pleaded guilty to, one count of failing to take all reasonable precautions to protect its workers.
Decision
The Ontario Court of Justice (“OCJ”) found that by neglecting to isolate workers with COVID-19 symptoms, Scotlynn failed to meet its duty to take every precaution reasonable in the circumstances to protect its workers, in violation of section 25(2)(h) of the OHSA. Additionally, the OCJ found that Scotlynn did not consistently implement or enforce COVID-19 screening or masking at the workplace.
As a result, the OCJ issued a $125,000 fine, as well as a 25% victim fine surcharge, as required by the Provincial Offences Act. In recommending this penalty, the Crown took into account that Scotlynn was an essential workplace that was grappling with how to adapt to the early stages of the pandemic. The Court agreed that the penalty was appropriate, given the uncertainty regarding the virus at the time of the offence.
Takeaways for Employers
The fine imposed on Scotlynn is the largest ever ordered against a business for a COVID-19-related safety violation. However, employers should note that the penalty likely would have been even higher but for the uncertainty around COVID-19 in or around mid-2020. Since then, public knowledge of COVID-19 has grown exponentially, and public health authorities have endorsed numerous measures to curb its transmission. As such, going forward, courts will likely hold employers to a higher standard when it comes to complying with COVID-19 health and safety protocols.
Additionally, employers should recall that in April 2022, the Government of Ontario passed Bill 88, the Working for Workers Act, 2022, which amended the OHSA to substantially increase penalties for individuals, directors and officers, as well as to introduce a number of prosecution-friendly changes, such as the addition of “aggravating factors” for sentencing, and the doubling of the limitation period (for more information about Bill 88, see our previous blog).
Maximum penalties under the OHSA are typically not enforced (in this case, the $125,000 fine imposed on Scotlynn falls significantly short of the maximum $1,500,000 fine permitted under the OHSA). However, the recent amendments to the OHSA suggest that health and safety violations in the workplace may be met with more serious consequences than before. Therefore, as the seventh wave of COVID-19 sweeps across the country, employers should continue maintaining health and safety practices that are appropriate to their workplace environment.
