Both in my commercial and employment litigation practice, I encounter Ontario business owners faced with serious charges laid against them under the Provincial Offences Act (“POA”). These charges usually stem from breaching the “Offences” provisions in statutes such as the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Technical Standards and Safety Act, 2000, S.O. 2000, c. 16 (“TSSA”), and Environmental Protection Act, R.S.O. 1990, c. E.19, just to name a few. As discussed here and here, breaching such statutes can result in hefty fines against individuals and corporations, and even jail time for individual defendants. As further discussed here, available defences to POA charges are minimal, because these charges are “Strict Liability Offences” – true Substantive Defences are quite rare.
Therefore, defending POA charges often requires reliance on legal procedural strategy far more than any substantive defence. One of these strategies involves carefully analyzing the charges laid against a defendant (if more than one has been laid), to assess if any of the charges are duplicative because they stem from the same set of facts. If one can successfully argue that their client has been charged with duplicative POA charges, said charges can be stayed pursuant to the Kienapple principle. In effect, when these charges are stayed, they are ignored when an adjudicator determines the applicable fines. This can significantly mitigate the final quantum of cumulative fines imposed on a party found guilty of POA charges.
Many of the procedural strategies used to fight POA charges are rooted in Canadian criminal law. This includes the Kienapple principle, which was developed by the Supreme Court of Canada (“SCC”) in Kienapple v. R., 1974 CanLII 14 (SCC),  1 SCR 729 [Kienapple]. Without going into the details, Kienapple was a criminal case where the lower courts found the defendant/appellant (Kienapple) guilty of two criminal charges stemming from an assault on an underage girl. On appeal before the SCC was whether the defendant should have been found guilty of two separate charges when both charges stemmed from the exact same facts. The SCC ultimately decided that the defendant could not be charged with two almost identical separate crimes stemming from the same set of facts. The reasoning was that an individual can only be punished once where only one crime takes place, and only one crime exists where there is a factual and a legal nexus between the duplicative offences – this is the Kienapple principle.
The case of The Technical Standards and Safety Authority v. Fujitec, 2013 ONSC 497 [Fujitec] is illustrative of how the Kienapple principle can function within the context of POA charges. Fujitec was a case involving a failed elevator, which injured five people. As part of the proceedings, Fujitec was charged with five Counts of breaching the TSSA and Ontario Regulation 209/01 (Elevating Devices) (“Regulation 209/01”).
The Counts were as follows:
- Count 1: failing to inspect and examine at regular intervals the parts and functions of an elevating device, contrary to paragraph 32(3)(a) of Regulation 209/01;
- Count 2: failing to repair or replace worn or defective components of an elevating device in order to prevent the device from becoming unsafe for operation, contrary to paragraph 32(3)(b) of Regulation 209/01;
- Count 3: failing to ensure that an elevating device is in a safe operating condition, contrary to subsection 32(4) of Regulation 209/01;
- Count 4: failing to maintain a log book that contains up-to-date data, contrary to subsection 34(1) of Regulation 209/01; and
- Count 5: causing or permitting an elevating device to be operated in an unsafe condition, contrary to subsection 9(1) of Regulation 209/01.
In the lower court decision of Fujitec, Justice Young stayed Count 3 in favour of Count 2 and stayed Count 2 in favour of Count 1. In substance, Justice Young determined that counts 2 and 3 were too similar to Count 1, as determined by their factual and a legal nexus. Therefore, Fujitec could not be fined for all three, despite clearly being guilty of each Count. These stays were uncontested on appeal.
One issue on appeal, in Fujitec, was Justice Young’s initial refusal to stay Count 5 as having a factual and legal nexus to Count 1. In Fujitec, Justice Pollak clarified that Count 1 was a failure to inspect the elevator to ensure it was safe. Count 5 was a the more serious charge of putting the faulty elevator into service. Thus, there was no factual and legal nexus between the two charges and Justice Pollak upheld the fine associated with Count 5.
Ultimately, Fujitec was fined as follows:
- $100,000.00 for Count 1;
- $30,000.00 for Count 4;
- $270,000.00 for Count 5; and,
- a 25 per cent victim surcharge.
Total Fine: $500,000.00.
As can be seen by the fines upheld in Fujitec, the consequences of POA charges can be significant. However, when one accounts for the fact that Counts 2 and 3 were stayed with relative ease, it is clear that arguing the Kienapple principle in these cases can be quite beneficial for a defendant. It is likely that this argument saved Fujitec approximately $200,000.00 in fines by staying Counts 2 and 3. Furthermore, Fujitec highlights how costly it can be when the Kienapple principle does not apply. Due to not staying Count 5, Fujitec was forced to pay the largest fine of $270,000.00.
When facing POA charges of any kind, it is crucial to find counsel well-versed in the intricate defences and strategies available to a defendant, including the appropriate application of the Kienapple principle.