Parfett J.

The Brockville Mental Health Centre appealed a $75,000 fine plus victim surcharge imposed after its conviction under s. 32.0.3(4) of the Occupational Health and Safety Act for failing to reassess workplace violence risks.

The appeal argued errors in principle regarding the connection between conviction and harm, the use of multiple incidents as an aggravating factor, and the treatment of publicly-funded institutions in sentencing.

The court dismissed the appeal, finding no error in the trial judge's assessment of aggravating factors or in treating the hospital's public status as a neutral factor. interesting_citations_summary: > This decision clarifies the application of sentencing principles under the Occupational Health and Safety Act, particularly for publicly-funded institutions.

It affirms that a connection between the offence (failure to reassess risks) and the harm caused can be considered, and that a series of incidents can be an aggravating factor.

It also holds that a trial judge's decision to treat a public institution's status as a neutral sentencing factor, absent legislative direction or binding caselaw, is not an error in principle, distinguishing from other cases that might consider it mitigating. final_judgement: "The appeal from sentence is denied." winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 3805 file_number: "CR-14-643" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc3805/2019onsc3805.html" cited_cases: legislation: - title: "Occupational Health and Safety Act, R.S.O. 1990, c.

O.1" url: "https://www.ontario.ca/laws/statute/90o01" - title: "Provincial Offences Act, R.S.O. 1990, c.

P.33" url: "https://www.ontario.ca/laws/statute/90p33" case_law: - title: "R. v. Boissoneau, [2016] O.J. No. 916 (SCJ)" url: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc916/2016onsc916.html" - title: "R. v. Rezaie, (1996), 112 C.C.C.(3d) 97 (OCA)" url: "https://www.canlii.org/en/on/onca/doc/1996/1996canlii1241/1996canlii1241.html" - title: "R. v. Lacasse, [2015] SCC 64" url: "https://www.canlii.org/en/ca/scc/doc/2015/2015scc64/2015scc64.html" - title: "R. v. McKnight (1999), 135 C.C.C.(3d) 41 (OCA)" url: "https://www.canlii.org/en/on/onca/doc/1999/1999canlii3717/1999canlii3717.html" - title: "R. v. Nasogaluak, 2010 SCC 6" url: "https://www.canlii.org/en/ca/scc/doc/2010/2010scc6/2010scc6.html" - title: "R. v. Cotton Felts, [1982] O.J. No. 178 (CA)" url: "https://www.canlii.org/en/on/onca/doc/1982/1982canlii3695/1982canlii3695.html" - title: "R. v. Wayfair, unreported decision of Justice of the Peace R. Rerup, issued December 21, 2017" url: "" keywords: - Occupational Health and Safety Act - Workplace violence - Sentencing appeal - Publicly-funded institution - Aggravating factors - Mitigating factors - Error in principle - Provincial Offences Act areas_of_law: - Occupational Health and Safety Law - Administrative Law - Criminal Law (Sentencing) --- # Court File and Parties **Court File No.:** CR-14-643 **Date:** 2019-06-19 **Ontario Superior Court of Justice** **Between:** The Royal Ottawa Health Care Group operating as The Brockville Mental Health Centre, Appellant – and – Her Majesty the Queen in right of Ontario (The Ontario Ministry of Labour), Respondent **Counsel:** Stephen Bird, for the Appellant Grainne McGrath & Graeme Adams, for the Respondent **Heard:** November 22, 2018 (at Brockville) --- # Reasons for Decision **PARFETT, J** [1] The Brockville Mental Health Centre (Hospital) was convicted pursuant to s. 32.0.3(4) of the [Occupational Health and Safety Act](https://www.ontario.ca/laws/statute/90o01) (OHSA) and sentenced to a fine of $75,000, plus a victim fine surcharge.

It appeals from that sentence. ## Background [2] The Hospital was charged as an employer with multiple offences related to workplace violence following a series of assaults and attempted assaults on workers at the Hospital between August 2014 and October 2014.

The same patient was the perpetrator of all the incidents.

On April 25, 2017, the Hospital was convicted of a single count of ‘failing, as an employer, to reassess the risks of workplace violence and ensure the related policy and programs continued to protect workers from workplace violence as required by s. 32.0.3(4) of OHSA.’ [2] [3] The Hospital is a specialized mental health facility that includes a forensic treatment unit.

The forensic treatment unit includes a unit for patients who were there for court ordered assessments, for stabilization or in order to keep them psychiatrically fit while awaiting trial.

It was the most volatile and unstable unit in the Hospital. [4] In August 2014, the Hospital accepted as a patient a woman with a complex history of mental illness, which included a long history of unpredictable violence to others, including caregivers.

The assaults began within days of this patient’s arrival at the Hospital. [5] There were 14 assaults committed by this patient on workers prior to the final incident that occurred on October 10, 2014.

On that day, as the nurse was escorting the patient to the washroom, the patient stabbed the nurse repeatedly in the head and neck area with a pen.

Staff intervened and stopped the patient.

However, the nurse was seriously injured and had to be taken to hospital given one of the stab wounds was very close to the carotid artery.

The nurse has not worked since this incident and she continues to suffer from PTSD. [6] On August 16, 2017, the trial judge imposed a sentence of $75,000 plus victim fine surcharge of 20%. [7] The Appellant contends that the trial judge made an error in principle by failing to consider a relevant factor, overemphasizing a factor and thereby imposed a sentence that was demonstrably unfit.

Specifically, the Appellant states that the trial judge erred by finding: * There was a connection between the conviction and the harm caused; * The multiple incidents of violence were an aggravating factor; and * The fines imposed for convictions under the OHSA should not differ between public not-for-profit companies and private companies. ## Legal Principles [8] Counsel are in agreement on the legal principles to be applied on an appeal from sentence. [9] Section 122 of the [Provincial Offences Act](https://www.ontario.ca/laws/statute/90p33) governs sentencing appeals and provides that the reviewing court ‘shall consider the fitness of sentence appealed from and may …(a) dismiss the appeal; or (b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted.’ [3] [10] As noted in [R. v. Boissoneau, [2016] O.J. No. 916 (SCJ)](https://www.canlii.org/en/on/onsc/doc/2016/2016onsc916/2016onsc916.html), ‘sentencing decisions are entitled to significant deference unless the sentencing judge has made an error in principle.’ [4] An error in principle occurs when a sentencing judge has failed to take into account a relevant factor, taken into account an irrelevant factor, failed to give sufficient weight to relevant factors, overemphasized a relevant factor or committed an error of law: [R. v. Rezaie, (1996), 112 C.C.C.(3d) 97 (OCA) at para. 20](https://www.canlii.org/en/on/onca/doc/1996/1996canlii1241/1996canlii1241.html#par20). [11] In [R. v. Lacasse, [2015] SCC 64](https://www.canlii.org/en/ca/scc/doc/2015/2015scc64/2015scc64.html), the Supreme Court of Canada noted"This Court has on many occasions noted the importance of giving wide latitude to sentencing judges.

Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence…" (at para. 11).

More specifically, the Court stated that the reviewing court should not intervene simply because it would have weighed the relevant factors differently (at para. 49).

The question is whether by placing more weight on one factor than another, the sentencing judge has acted unreasonably: [R. v. McKnight (1999), 135 C.C.C.(3d) 41 (OCA) at para. 35](https://www.canlii.org/en/on/onca/doc/1999/1999canlii3717/1999canlii3717.html#par35), as cited in [R. v. Nasogaluak, 2010 SCC 6 at para. 46](https://www.canlii.org/en/ca/scc/doc/2010/2010scc6/2010scc6.html#par46).

Finally the Court notes that the choice of sentencing range cannot be of itself a reviewable error: Lacasse at para. 51. [12] In [R. v. Cotton Felts, [1982] O.J. No. 178 (CA)](https://www.canlii.org/en/on/onca/doc/1982/1982canlii3695/1982canlii3695.html), the Ontario Court of Appeal set out the criteria relevant to sentencing in the context of the OHSA.

The court held: "To a very large extent the enforcement of [public welfare] statutes is achieved by fines imposed on offending corporations.

The amount of the fine will be determined by a complex of considerations, including the size of the company involved the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute.

Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence…" (at para. 19). [13] In determining the amount of the fine, the court is expected to find an amount that ‘without being harsh [is] substantial enough to warn others that the offence will not be tolerated.

It must not appear to be a mere licence fee for illegal activity’ (at para. 22). [14] All these principles must be taken into consideration in sentencing an offender.

However, imposing a significant fine on a publicly-funded institution may have a disproportionately deleterious effect.

In R. v. Wayfair, unreported decision of Justice of the Peace R. Rerup, issued December 21, 2017, the court noted"The effect of a financial penalty on this public institution may be greatly realized in the community though potential employment cuts, cuts to service, and business lost to local suppliers of the hospital should I impose a significant fine.

I balance that with the hospital’s obligation to take significant steps to protect its employees to the highest level possible" (at p. 4). [15] The sentencing judge in the present case also wrestled with this issue.

He stated"Workers at the BMHC deserve the same protections as workers for a private employer and the fines imposed should not differ between public not-for-profit companies and private companies." [16] [16] As the Crown pointed out, there is no provision in the legislation itself distinguishing private corporations from non-profit public institutions. ## Analysis [17] The Appellant argues that the trial judge erred when he indicated on sentencing that there was a connection between the conviction and the harm caused.

The Appellant took the position that had there been any connection between the harm done to workers and the offence for which it was convicted, the hospital would have been convicted of a different offence.

I disagree. [18] Section 32.0.3(4) contemplates the possibility of harm.

That offence states"Failing, as an employer, to reassess the risks of workplace violence and ensure the related policy and programs continue to protect workers from workplace violence." [17] [19] As noted by the trial judge in his reasons for judgment, he convicted the hospital of this offence because"[A]t some point, when the assaults and the attempted assaults kept occurring, a full risk reassessment of the unit with [the patient] on it was required to re-address the risk of workplace violence and not just the treatment plan for [the patient]." [18] [20] The harm being done to the workers by the continued assaults and attempted assaults was an integral part of the determination that the hospital failed to reassess its policies in the face of an obvious need to do so. [21] In my view, this determination by the trial judge also supports his use of the continued assaults and attempted assaults as an aggravating factor.

It was not the mere fact of the previous assaults that the trial judge found was an aggravating factor; it was the fact there had been a series of assaults. [22] It should be noted that the trial judge also found a number of mitigating factors that he took into consideration in his sentencing, including: * No prior convictions; [19] * Employees were properly trained and proper procedures were in place; [20] and * Additional security measures were put in place to deal with this patient. [21] [23] As a result, I cannot find that the trial judge erred in his assessment of the aggravating factors. [24] The final issue is whether the fact the hospital is a publicly-funded institution should be considered a mitigating factor.

The trial judge found that it was a neutral factor.

The Wayfair case is the only case that counsel provided that dealt directly with this issue.

This case was decided after the present case and the trial judge could not have taken it into consideration.

It is not a case that is binding on this court.

In my view, the position taken in the present case is equally valid as that taken in the Wayfair case.

Absent any legislative pronouncement or binding caselaw on this issue, I find that it was not an error in principle for the trial judge to decide the hospital’s status was a neutral factor. [25] For all the reasons outlined above, the appeal from sentence is denied. --- Madam Justice Parfett Released: June 19, 2019