Stephen Bird

The applicant employer sought judicial review of a labour arbitration award that denied its right to recover wage overpayments made to employees due to a mistake of fact.

The arbitrator had found that the union established the defence of estoppel and that the collective agreement provision relied on the employer only governed the process for recovery, not the absolute entitlement to it.

The Divisional Court dismissed the application, holding that the arbitrator's interpretation of the collective agreement was reasonable and that labour arbitrators have flexibility in applying equitable doctrines like estoppel without requiring a formal, detailed analysis of every component.

The applicant hospital sought judicial review of a labour arbitrator's decision upholding grievances filed by the respondent union regarding statutory holiday premium pay for full-time employees.

The hospital argued the arbitrator unreasonably admitted past practice evidence and misinterpreted the clear language of the collective agreement.

The Divisional Court dismissed the application, finding the arbitrator reasonably treated the evidence as contextual factual matrix evidence rather than past practice.

The court further held that the arbitrator's interpretation of the collective agreement was transparent, intelligible, and justified within her specialized expertise.

The Crown appealed a $7,500 fine imposed on a corporate defendant for an Occupational Health and Safety Act violation, arguing the lower courts erred in assessing the corporation's size and applying the parity principle between individual and corporate offenders.

The Court of Appeal allowed the appeal, finding that the lower courts incorrectly restricted consideration of the corporation's economic activity to the local operation and improperly relied on sentencing precedents for individuals.

The fine was increased to $40,000.

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

The applicant sought judicial review of an arbitration award interpreting a collective agreement provision regarding salary protection for downwardly reclassified employees.

The arbitrator found the provision unambiguously entitled these employees to economic increases and revisions.

The Divisional Court dismissed the application, finding the arbitrator's interpretation, treatment of estoppel, and refusal to use extrinsic evidence to create ambiguity were reasonable.

The court also rejected the applicant's argument that the arbitrator breached natural justice by citing authorities not provided by the parties, as no novel issue was raised.

The applicant sought judicial review of an arbitration award that dismissed a grievance concerning the employer's refusal to pay a bilingual bonus to part-time indeterminate employees working temporarily in bilingual positions.

The Divisional Court applied the reasonableness standard of review.

The Court found that the arbitrator's reliance on past practice and the specific wording of the collective agreement regarding the bilingual bonus was reasonable.

The application for judicial review was dismissed with costs awarded to the employer.

The applicant employer sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision that refused to discontinue the respondent worker's Future Economic Loss benefits.

The worker had returned to full-time work 17 years after his injury, but his benefits had been locked-in after the statutory 60-month review window.

The Divisional Court dismissed the application, finding the Tribunal's interpretation of the legislation and policy directives—that benefits could not be reviewed after 60 months absent specific exceptions—was reasonable and respected the legislative objective of finality.

The plaintiff's employment was terminated without cause at age 63.

The employer treated the termination as a retirement and paid the plaintiff his retirement allowance benefits under the company policy.

The plaintiff brought an action claiming entitlement to both the retirement allowance and compensation for termination in lieu of notice.

The court found that the employment contract and retirement policy expressly precluded the payment of both benefits.

The plaintiff's claim was dismissed, and the employer was granted summary judgment to recover an overpayment of funds mistakenly paid in lieu of notice.

The Ministry of Labour charged the Royal Ottawa Health Care Group with three offences under the Occupational Health and Safety Act arising from a workplace violence incident on July 5, 2012, in the Recovery Program.

A patient became violent and assaulted two registered practical nurses and a personal care attendant.

The charges alleged failures to: (1) develop and maintain measures and procedures for summoning immediate assistance when workplace violence occurs; (2) provide sufficient information, instruction and supervision to workers to protect their health and safety; and (3) take every precaution reasonable in the circumstances for worker protection.

The court found that the employer had developed and maintained appropriate policies and procedures, that workers had received adequate training, and that the response to the incident was immediate.

All three charges were dismissed.

The applicant filed a second human rights application alleging reprisal and discrimination based on disability, stemming from settlement discussions during a preliminary hearing for her first application.

She claimed she was told a settlement could not be achieved unless it included her human rights application, which she found threatening.

The Tribunal dismissed the application, finding it plain and obvious that the allegations were outside its jurisdiction, as positions taken during settlement negotiations do not constitute reprisal or discrimination under the Human Rights Code.

The applicant hospital sought judicial review of an interim order made by the Ontario Labour Relations Board requiring the provision of properly trained security personnel in a forensic psychiatric unit.

The respondents argued that reviewing the interim order before the Board had completed its proceedings would be an inappropriate, fragmented approach.

The Divisional Court agreed, finding the application premature as the Board's proceedings were still ongoing and the impugned order was only one aspect of a broader safety regime being considered.

The application was dismissed with costs awarded to the respondent unions.

The plaintiff, a medical secretary, sued her former employer, a physician, for wrongful dismissal after 12.5 years of service.

The defendant claimed he terminated her for cause due to performance issues and her refusal to accept a significant salary reduction.

The court found insufficient evidence to support termination for cause, noting the defendant's complaints were largely related to an alleged overpayment error by his accountant.

The court awarded the plaintiff a nine-month notice period, amounting to $32,676.79, finding she had adequately mitigated her damages by retraining as a real estate agent.

The applicant university sought judicial review of an arbitration award that granted a former employee sick leave benefits for a period after his fixed-term employment contract had expired.

The arbitrator found that the employee's entitlement to the benefits had vested while he was still employed, bridging the gap to his long-term disability benefits.

The Divisional Court dismissed the application, holding that the standard of review was reasonableness and that the arbitrator's interpretation of the collective agreement was transparent, rational, and justified.

The applicant union sought judicial review of an arbitrator's decision upholding the employer's refusal to pay a grievor for sick days and holidays.

The employer had rejected the grievor's medical notes after a supervisor overheard a rumour that the grievor planned to call in sick and manipulate her blood pressure to obtain a note.

The Divisional Court dismissed the application, finding the arbitrator reasonably admitted the rumour evidence not for its truth, but to explain why the employer requested further medical information.

The court upheld the arbitrator's conclusion that the union failed to meet its onus of proving illness due to the insufficiency of the medical notes provided.

The applicant fertility centre sought judicial review of an Ontario Labour Relations Board decision declaring that a 'health services integration' had occurred when the centre moved out of a hospital and hired some of the hospital's former unionized employees.

The Divisional Court applied the Dunsmuir framework to determine that the standard of review for the Board's interpretation of the Public Sector Labour Relations Transition Act, 1997 was reasonableness.

The Court dismissed the application, finding the Board's conclusion that the centre was an integrated component of the hospital and its decision to apply the Act were reasonable and supported by the evidence.

The union appealed a Divisional Court decision that quashed an arbitrator's award regarding holiday pay for part-time employees.

The arbitrator had found the collective agreement ambiguous and used extrinsic evidence to rule in the union's favour.

The Court of Appeal held that the arbitrator's decision was subject to a reasonableness standard of review.

Finding that the arbitrator's conclusion on ambiguity and his use of extrinsic evidence were reasonable, the Court of Appeal allowed the appeal and reinstated the arbitrator's award.

The appellant company was charged under the Occupational Health and Safety Act following a workplace accident where an employee was injured using a table saw.

The trial judge stayed the charges, finding the appellant's right to a fair trial under s. 11(d) of the Charter was irreparably prejudiced because a potential defence witness (a supervisor) died before charges were laid.

The provincial offences appeal court lifted the stay.

The Court of Appeal dismissed the appeal, holding that the appellant failed to establish actual prejudice, as there was no evidence the deceased witness would have materially assisted the defence, and actual prejudice cannot be presumed from the mere fact of lost evidence.

The complainant, who had bipolar disorder, was hired as a software program tester.

Shortly after starting, he disclosed his condition to his supervisor and began exhibiting pre-manic symptoms.

The employer terminated him ten days into his employment, claiming he misrepresented his ability to perform the job.

The Human Rights Tribunal found the employer discriminated against the complainant and failed its procedural and substantive duties to accommodate his disability, awarding damages and public interest remedies.

The Divisional Court upheld the Tribunal's findings on discrimination, accommodation, and damages, but modified some of the public interest remedies.

The complainant, who has bipolar disorder, was hired by the respondent as a senior test analyst.

Shortly after starting work, he disclosed his condition to his supervisor and requested monitoring for symptoms.

Days later, he was summarily dismissed without any assessment of his condition or the possibility of accommodation.

The Tribunal found that the respondent discriminated against the complainant on the basis of disability by failing to fulfill the procedural dimensions of the duty to accommodate.

The precipitate dismissal triggered a severe manic episode.

The Tribunal awarded general damages, damages for mental anguish, and special damages for lost wages, along with public interest remedies.

The City of Ottawa sought judicial review of an Arbitration Board decision that reinstated an employee who had been terminated for excessive absenteeism under a Last Chance Agreement.

The Board found that the employee suffered from a disability (an anxio-depressive state) and that the City discriminated against her by counting disability-related absences toward the threshold in the agreement.

The Divisional Court dismissed the application, holding that the appropriate standard of review was patent unreasonableness and that the Board's findings of disability and prima facie discrimination were supported by the evidence and not patently unreasonable.