Ontario Court of Justice

Date: August 6, 2025

Court File No.: 24-0033

Location: Brantford, Ontario

Between:

ONTARIO (MINISTRY OF LABOUR, IMMIGRATION, TRAINING AND SKILLS DEVELOPMENT)

— and —

APOGEE CERAMICS INC.

Before: Justice of the Peace K.W. Bouchard

Heard on: October 22, 2024 and December 10, 2024

Judgment on Sentence delivered: February 13, 2025

Reasons for Sentence released: August 6, 2025

Counsel:

• T. Gomes — Crown Counsel
• J. Timms — Counsel for Defendant

BOUCHARD K.W. J.P.:

Introduction

[1] This court presided over a guilty plea and sentencing hearing for Apogee Ceramics Inc (Apogee). The arraignment, on count 1 only, was completed on October 22, 2024 at which time the court received an agreed statement of facts (the ASF). Those facts indicated that Apogee was guilty of an offence under section 25(1)(c) of the Occupational Health and Safety Act (OHSA). Specifically, that they failed as an employer to ensure that the measures and procedures prescribed by section 25 of R.R.O 1990 Regulation 851 were carried out at their facility at 71 Folsetter Drive in Paris ON on February 17, 2023.

[2] The ASF detailed that Apogee is legally incorporated with 37 to 39 workers, and a manufacturing facility at 71 Folsetter Drive, Paris, Ontario (the Facility). The Facility is a workplace, as defined by OHSA. That on the offence date, a worker K.F. employed by Apogee was working at the Facility. The ASF states she was alone at the time of the incident, while there were co-workers present in the Facility. At approximately 8:40 pm K.F. was unloading the storage section of a conveyor system. There was a mechanical fault. K.F. attempted to correct the fault by inserting her right hand into the chain and sprocket assembly. The glove that K.F. was wearing caught on the chain and sprocket assembly pulling her fingers in. K.F. sustained four finger amputations on her right hand, specifically the upper segments of her dominant hand.

[3] The ASF further states that a subsequent investigation by Inspector J. Johnstone determined that the chain and sprocket assembly was not equipped with and guarded by a guard or other device that prevents access to the pinch point. The ASF states that Apogee failed as an employer to ensure that an in-running nip hazard or any part of the machine, device, or thing that may endanger the safety of any worker was equipped with and guarded by a guard or other device that prevented access to the pinch point thereby contravening section 25 of Regulations for Industrial Establishments. These facts form the basis supporting a conviction, the court accepted these facts and entered a finding of guilt and conviction, then proceeded to hear submissions on sentencing.

[4] The ASF states that Apogee has a record of prior non-compliance with OHSA or its regulations. An order was issued in the past for non-compliance with guarding access to pinch points on a conveyor, similar to the case at bar. On February 15, 2018 an order was issued requiring that the employer ensure that the top mixer conveyor in use in the shop be equipped with and guarded by a guard or other device that prevents access to the pinch points. At the time of inspection, there was insufficient guarding in place to prevent worker access to pinch points/in-running nip hazard associated with the conveyor belt and the roller at the exit point of the conveyor.

[5] It was jointly submitted that Apogee spent over $10,000 to improve guarding across the facility, including the conveyor lines where the incident occurred. Apogee has also installed safety cages to restrict employee access. The joint recommendation on sentence was a fine of $35,000 which relied on Cotton Felts which discusses the enforcement of public welfare statutes on corporations is largely achieved by fines. At the time of the joint submission the court noted that neither party in their written submissions had provided any authorities on the proper sentencing range for a corporate defendant facing similar offences. The matter was adjourned for written submissions. The court reviewed the written submissions prior to the adjournment date (December 10, 2024) and sought further written submissions whether the joint position had considered the impact of inflation on the authorities provided. The matter was further adjourned for a sentencing judgment on February 13, 2025. What follows is my written reasons for the judgment rendered on that date.

[6] For the reasons below the court has rejected the joint submission as not being otherwise in the public interest, applying the public interest test outlined in Anthony-Cook. The court found, and will explain herein, that the parties failed to properly address inflation within their joint submission, relying on outdated sentencing authorities that date back a decade or more. The court found that for corporate defendants, where fines are the primary means of ensuring deterrence, it is an error in law to not adjust sentencing authorities reasonably for inflation. The court imposed a five-year cut-off on reliable sentencing authorities, adopting the precedent in Jordan that courts have the authority to determine timelines after which matters are presumptively unreasonable. In the case at bar the court found that any authority submitted, for corporate defendants, that is older than five years is presumptively unreliable, an opportunity was provided to the parties to rebut this presumption. The parties failed to rebut the presumption that the authorities were unreliable, the court then found that since inflation had not been reasonably incorporated that the fine was not in the public interest. The court was otherwise satisfied the sentence was fit and is aware that a fitness test is an improper basis for rejecting a joint submission.

Issues

[7] What is the proper test a court should apply when reviewing a joint submission on a guilty plea? Under which circumstances can a court reject a joint submission?

[8] What does it mean for a joint submission to not be otherwise in the public interest?

[9] What weight should a court give to the issue of inflation, when a fine is the proposed punishment for a corporate defendant?

[10] Did the joint sentence adjust the sentencing range based on inflation?

[11] Does the joint sentence bring the administration of justice into disrepute, or is otherwise not in the public interest?

Rules

[12] The Supreme Court of Canada (SCC) in Anthony-Cook reinforced the vital importance of joint submissions for guilty pleas, they acknowledge that trial courts across Canada rely on them to ensure timely conclusions to matters and docket management. The court confirmed that the public interest test is the proper test to apply when a sentencing judge considers departing from a joint sentence. The court explained that under the public interest test "a sentencing judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest". (emphasis added). The court then explained the process by which a sentencing judge would make that determination.

"Where the joint submission is contentious and raises concerns with the trial judge, the following procedures should be followed. First, the trial judge should approach the joint submission on an "as‑is" basis. Second, the public interest test should be applied when a trial judge is considering going above or below the sentence proposed in the joint submission, although different considerations may inform the public interest in each context. Third, the trial judge may inquire about the circumstances leading to the joint submission — and, in particular, any benefits obtained by the Crown or concessions made by the accused. Fourth, the trial judge should notify counsel of any concerns and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea. Fifth, if the trial judge's concerns are not alleviated, the judge may allow the accused to withdraw his or her guilty plea. Finally, if the trial judge remains unsatisfied by counsel's submissions, he or she should provide clear and cogent reasons for departing from the joint submission." (emphasis added)

[13] In Nahanee the SCC addressed the issue of a sentencing judge jumping or exceeding the crown position on sentence during a contested sentence hearing. The court decided that the public interest test from Anthony-Cook is restricted to joint submissions on sentence. However, the court instructed that sentencing judges should give notice that they intend to diverge from the crown position and invite submissions. The court acknowledged that the public interest test cannot apply during contested sentencing hearings, as the duty to craft an appropriate sentence would be offloaded from the court to the crown, usurping the court's role. The court reiterated the main benefit of joint submissions is the certainty that the sentence brings to the public and the accused. The court also stated that a secondary benefit of joint resolutions, not present in contested sentencing, is that they are more efficient take less time and resources. As these reasons will explore, this was not the reality in the case at bar.

[14] In Fuller the ONCA, in addition to reinforcing the value of joint positions from Anthony-Cook and the public interest test, highlighted that parties are under no obligation to advance a new joint position when a sentencing judge raises concerns; further the court stated that joint positions are not intended to be moving targets. Finally, this case stands for the position that where parties propose a new joint position the sentencing court has to consider and give reasons for rejecting the new joint position, which should be a rare occurrence.

[15] In Harasuik the ONCA confirmed that a joint submission for sentence should only be rejected if it would bring the administration of justice into disrepute (prong one) or whether it is otherwise not in the public interest (prong two). This case also reminds trial judges that where an omnibus or global plea resolves multiple separate trials and dispenses with the need for victims to testify that there is a high bar before rejecting joint positions.

[16] Of interest, recently in Wesley the Ontario Court of Appeal (ONCA) found that that the stringent public interest test from Anthony-Cook does not hold for joint submissions that follow a trial. The quid pro quo that would operate on a joint submission guilty plea is absent after a trial; further the trial judge having heard the evidence is well situated to conduct a fitness assessment of the sentence, in contrast with a guilty plea were they are not so situated.

[17] In Caruk-Hall Scrutton J., sitting as a POA appeal judge, when reviewing an appeal from sentence of a corporate defendant, observed that some of the authorities relied upon by the appellants were no longer reflective of the market realities of the home building industry, and would be insufficient to achieve deterrence.

[18] The prosecution and defence submit Cotton Felts, in which the ONCA acknowledged that the OHSA is amongst a large family of statutes creating public welfare offences, and for these offences the enforcement is largely achieved by fines when the offender is a corporation. The prosecution highlighted further findings in Cotton Felts that the amount of the fine will be determined by considerations of: the size of the company, their scope of economic activity, the extent of actual and potential harm, and the maximum penalty prescribed. Finally, that the predominant sentencing factor for public welfare of regulatory offences is deterrence.

[19] The prosecution and defence jointly submitted several authorities on November 19, 2024, many unreported which captured similar fact convictions between 2005 and 2022. I will not list them all here for brevity. The court accepts that they stand for a sentencing range of $30,000 to $40,000 for similar fact convictions. The court notes the majority predate 2021, and the oldest is from 2005.

[20] The prosecution submits Limen Group, where Newton-Smith J. (as she then was), found that inflation is a factor to be considered in sentencing, and remarked:

"An increase in the maximum penalty is a factor to be considered and shifts the landscape of prior sentencing ranges upwards: R. v. Friesen, 2020 SCC 9, R. v. Hoyek, 2021 NSSC 178. Further, as Justice Monahan observed in Matcor, where the penalty being imposed is financial, inflation is also a factor to be considered. What was a suitable fine in 1995, or 2005, or even 2015, is unlikely to be suitable in 2024." (emphasis added)

[21] The prosecution submits Ramkey, where Baker J. sitting as a POA appeal judge, noted that fines should rise with general levels of inflation and income over time. This decision is important in that it indicates that not only should inflation be considered as a factor in the public interest, but potentially income of the defendant as well as they are often tied to inflation due to current market realities.

Application

[22] Applying Anthony-Cook and Harasuik, this court accepts it is bound to accept a joint position on sentence unless it meets the very high standard in the public interest test to diverge from that position. For Apogee the court should only reject the joint request for a $35,000 fine, exclusive of victim fine surcharges, if a reasonable and informed member of the public would conclude that there was a breakdown in the proper functioning of the justice system. This court observes that there are two prongs to the public interest test, first whether the sentence would bring the administration of justice into disrepute, or whether the sentence is otherwise not in the public interest. It is on the second prong that this courts analysis hinges. I have found that it is not in the public interest to ignore the impact of inflation on fines for corporate defendants when that fine is based on dated authorities. This court accepts the dicta of the SCC that the factors that go into the public interest test may vary from case to case. For Apogee, a corporate defendant, inflation is a relevant factor that must be analyzed as part of the public interest.

[23] Distinguishing from Nahanee and Fuller. First, Apogee was not a contested sentencing hearing it was clearly a joint submission on sentence; therefore, this court remains bound to apply the public interest test. Second, the joint submission did not result in an efficient and less timely sentencing hearing; the quid pro quo and certainty of a joint sentence was undermined by the incomplete joint submission that lacked any proper authorities. Specifically, this court found the original submissions by both parties unacceptable as they lacked sentencing authorities that could give the court confidence that the sentence was not "unhinged" or would not bring the sentence into disrepute (prong one public interest test). The court was forced to adjourn these proceedings for written submissions on two occasions. On the first to repair the lack of authorities, on the second to repair the lack of comment on the impacts on inflation on the dated authorities submitted (prong two public interest test). I would distinguish this case from Fuller, first this court did not indicate that the joint sentence was unfit unlike Fuller, and the court did not request a new joint position. The only similarity between Apogee and Fuller was that multiple adjournments were required, during which new submissions were received from both parties, after which a final sentence was imposed. This court is mindful that joint submissions should not be moving targets, and each adjournment on a joint position degrades the benefits of a joint position namely certainty and timeliness. However, in this case it was unavoidable, the written submissions from each party were initially incomplete, and at each adjournment the court highlighted further issues that needed to be rectified, for which it provided new time for submissions to be prepared.

[24] Applying Wesley, this court remains bound to apply the public interest test. The case at bar was a joint submission on a guilty plea. This court did not conduct a trial for Apogee and is not well situated after hearing evidence to conduct a fitness test of the sentence. This court accepts that applying a fitness test would be an error in law. The court makes a point of highlighting repeatedly that it applied a public interest test and did not err by delving into a fitness test; the court is mindful that the prosecutor was concerned in its verbal and written submissions that the court risked falling into error by conducting a fitness test. I am satisfied from reviewing these proceedings that did not occur and the proper test was applied.

[25] Partially applying Caruk-Hall, this court agrees with the POA appeal court that a sentencing judge does need to consider whether sentencing authorities provided are still reflective of the market realities where there is a corporate defendant. However, this court will not apply a determination whether the joint position will achieve deterrence, as an examination of sentencing factors is a component of a fitness test, which would be in error. In Apogee, the authorities submitted largely predate 2020-2022, the court takes judicial notice that a period of rapid and sustained inflation occurred after 2021 because of the covid 19 pandemic, a fact that is easily verifiable and widely known by the public. A reasonable member of the public would be rightly concerned that a joint submission for a corporate defendant had not markedly increased due to inflation and current market realities; further they would be rightly concerned that the fine could be seen as a discounted penalty compared to similar offenders in the pre-inflationary period. A reasonable member of the public may even conclude that there was a breakdown in the proper functioning of the justice system where corporate defendants were given pre-inflationary fines when they are receiving revenue in post-inflationary amounts.

[26] Applying Cotton Felts. This decision is the leading decision on public welfare offences, this court is bound to follow its guidance. The court did seek submissions on the first adjournment on the Cotton Felts criteria for corporate defendants when it requested the sentencing authorities. The court was subsequently satisfied that the sentence was fit, and in the proper sentencing range based on those authorities, during the timeframe that they were presumptively reliable. The court abandoned any further inquiries into the fitness of the joint sentence as it was satisfied that the public interest test was the appropriate test to apply. The court accepts that the available penalties for Apogee as a Part III prosecution under OHSA s.66(2) and 66(5) were limited to fines, a probation order, and other prescribed orders. Of note, the maximum fine in this matter is limited to the prior regime, and not the subsequent amendments that raised the maximum fine to $2,000,000.

[27] Persuaded by Limen Group, Applying Ramkey. While not bound by Limen this court finds it highly persuasive. I see no fault with Her Honour's comment that where a fine was suitable in 2005 or 2015 it may not be in 2024. This is nearly directly on point with Apogee. Several of the authorities provided originate from 2005 and the mid to late 2010s. This court accepts that they were fit sentences at that time, but when current market realities are considered, especially inflation, there reliability is now greatly diminished, and can be considered unreliable. When queried by the court on how inflation should be incorporated into a sentence that is in the public interest the prosecution replied that there is no mechanistic method to determine and inflation adjustment. I agree. A mechanistic procedure where, for example, 2% is applied per annum may not reflect market realities between the time of the authority and the time of the case at bar. Instead, this court adopts a more reasonable and flexible approach, where any authority older than 5 years is presumptively unreliable (with respect to inflation). Both parties then would be afforded opportunity to rebut that presumption by explaining how they have reasonably calculated inflation based on current market realities. In this case the joint position falls squarely in the middle of the accepted sentencing range of $30,000 to $40,000 from 2005-2019. The parties argue that they considered inflation and that a sentence of $35,000 reflects a reasonable consideration of inflation. I respectfully disagree. Even a lay understanding of economics, and quick reference to public resources such as the Bank of Canada's records on rates of inflation would lead a reasonable person to calculate a diminishment of $35,000 between 2015 and 2024 of approximately 23%. Meaning in real terms a fine of $35,000 in 2015 is equivalent to a fine of approximately $26,000 in 2024. The court finds this not to be in the public interest, a reasonable member of the public would lose confidence in these judicial proceedings if that was accepted. A similar but opposite calculation would show that to maintain the same penalty range from 2015 in current dollars would show an adjusted range of $45,000 to $55,000.

Conclusions

[28] For these reasons herein this court respectfully disagreed with the prosecution and defence. The proposed fine of $35,000 was not in the public interest in 2024 (nor 2025 when the sentence was rendered) given the market realities of inflation after the covid pandemic of 2020-2022. The court accepted that $35,000 falls neatly in the appropriate range of a fit and proper sentence, which both parties showed was $30,000 to $40,000; however, that range was fit and in the public interest in 2015. I have rejected that the joint submission properly incorporated inflation from 2015 until 2024, as it is based largely on authorities that are more than 5 years old and are presumably unreliable to describe current market realities. The proposed joint sentence lacks a reasonable adjustment factor for inflation, which the court has deemed based on its analysis would have raised a proper sentence of $35,000 from 2015 to approximately $55,000 in 2024. For these reasons that is the fine that was imposed by this court as being in the public interest.

[29] This decision stands for the proposition that for corporate defendants, facing punishment for regulatory or public welfare offences, where fines are the primary means of achieving deterrence, it is an error in law not to incorporate inflation and adjust sentencing ranges from dated authorities. This court proposes a novel five-year threshold for authorities in such matters; whereby any authority that predates the case at bar by 5 years is presumptively unreliable to described current market realities. This presumption can be rebutted by parties through their submissions. There should not be a high bar for the parties to demonstrate they have considered the effects of inflation, they need only provide reasonable grounds to the jurist that this factor was considered. In the instant case the parties failed to rebut this presumption. Having failed to do so the joint submission was deemed not in the public interest and was rejected for those reasons.

[30] The court is mindful of the time that these proceedings consumed. What was anticipated to be a 20-minute guilty plea turned into a multi-appearance, multiple submission sentencing hearing. The court is satisfied that it was necessary and in the public interest to use that court time, and it was used appropriately. The court would encourage parties in the future to prepare fulsome submissions on a joint sentence for the first appearance, that include appropriate sentencing authorities, and a review of the key findings of this court on inflation when proposing similar joint sentences for corporate defendants.

Signed: Justice of the Peace K.W. Bouchard