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POA - Fines. R. v. 1222149 Ontario Ltd. (Dairy Queen and/or Embrun DQ Grill & Chill) [sentencing]
In R. v. 1222149 Ontario Ltd. (Dairy Queen and/or Embrun DQ Grill & Chill) (Ont CA, 2024) the Ontario Court of Appeal allowed a POA [s.131] OSHA Crown sentence appeal.
Here the court considers "treating individual and corporate defendants as “similar offenders” when applying the parity principle" in sentencing:(2) The appeal court erred in law by failing to address the trial court’s error of treating individual and corporate defendants as “similar offenders” when applying the parity principle
[27] The Crown argues that the appeal court erred in failing to consider the argument it made that the sentencing justice erred by relying on the case of R. v. Scott (2005), 80 W.C.B. (2d) 582 (Ont. C.J.), a case involving an individual defendant, as a reference for the appropriate range of sentence for the corporate respondent in this case.
[28] The respondent argues that there was no impact from the failure of the appeal court to address this issue because the sentencing judge appropriately considered Scott as comparable. The respondent also notes that the sentencing justice imposed a fine 2.5 times that imposed in Scott.
[29] We agree with the Crown that the appeal court erred on this issue and that the error was material.
[30] Although the appeal court listed among the issues raised by the Crown the issue of whether it was an error to treat individual and corporate offenders as “similar offenders” for parity purposes, the court failed to address the issue. The appeal court considered parity only from the perspective of similarity of injuries caused by an offence and the size of the corporation (the latter point was tainted by the first error, discussed above, that the appeal court only considered the store where the offence occurred in assessing the size of the corporation). The appeal court did not consider whether it was an error for the sentencing justice to treat sentences imposed on individual offenders as a reference for consideration of parity when sentencing a corporation. The failure to address this issue was an error in law as the issue was fully argued by the Crown before the appeal court.
[31] The error had a material impact on the sentence imposed because the justice of the peace also erred on this issue. He found that the Scott decision was “very comparable” to the present case. In Scott, a $3,000 fine was imposed on an individual defendant where an employee’s fingers were injured in a dough sheeting machine without a guard at the time of the accident. At the time of the sentencing in Scott, the maximum fine under the OHSA for an individual was $25,000, compared to $500,000 for a corporation. Setting aside that the injuries in Scott appear to have been less serious and less long term than in this case, the sentencing justice failed to consider that the sentencing range for individual defendants is not the same as for corporate defendants.
[32] Sentencing ranges for individuals for provincial offences cannot be unthinkingly applied to sentencing of corporate defendants. This is so for at least two reasons. First, for most offences created by provincial statute, the legislature has set a higher maximum fine for a corporate defendant than for an individual defendant. For the legislation at issue in this case, the OHSA, at the time of the offence, the maximum fine for an individual was $25,000, while the maximum fine for a corporation was $500,000.[2] The fact that the maximum penalty is significantly higher for corporations than for individuals speaks to a different sentencing range. The different sentencing range for corporations as compared to individuals means that parity usually will not apply directly between sentences imposed on individuals and corporations: Cotton Felts, at p. 294; New Mex, at para. 100.
[33] This brings us to the second reason that parity often will not apply directly between corporations and individuals in sentencing for OHSA offences. The legislative choice to enact a higher maximum fine for corporations demonstrates a legislative intention that a broader spectrum of penalties be available in sentencing corporations than is available for individuals because it is often, but not always, the case that corporations have more economic means than individuals. As a result, higher fines may be required to achieve specific and general deterrence in sentencing a corporation as compared to an individual.
[34] We do not suggest that sentencing precedents for individuals in provincial offence prosecutions are entirely irrelevant to sentencing corporations. One could imagine circumstances involving a small, closely-held corporation where the quantum of fine necessary to achieve specific and general deterrence would be very similar to that appropriate for an individual defendant.
[35] The difficulty that arises when sentencing precedents for individuals are applied to corporate defendants without careful consideration is that the ranges of sentence are not the same. Typically, ranges of sentence for individual defendants for the type of offence at issue in this appeal are in the thousands of dollars, whereas ranges of sentence for corporate defendants are in the range of tens of thousands of dollars. Where a sentencing judge or justice of the peace relies on a precedent involving an individual in sentencing a corporate defendant, the reasons must show that the judge or justice of the peace turned their mind to the difference between individuals and corporations in terms of range of sentence and considered the quantum of fine necessary to achieve specific and general deterrence for the corporate defendant: New Mex, at para. 108.
[36] We acknowledge that the sentencing justice imposed a fine 2.5 times that imposed in Scott. But even $7,500 is well below the range commonly imposed on corporate defendants of the respondent’s size for similar offences (discussed further below). In the absence of any discussion by the sentencing justice in his reasons adverting to the different ranges for individual and corporate defendants, and given his reliance on Scott as “very comparable”, we conclude that he erred on this issue. As a result, the failure of the appeal court judge to address this issue had an impact on the sentence imposed. . 2682283 Ontario Ltd (Volcano Café and Lounge) v. Durham (Regional Municipality)
In 2682283 Ontario Ltd (Volcano Café and Lounge) v. Durham (Regional Municipality) (Ont CA, 2024) the Court of Appeal considered (and dismissed) an appeal by a 'hookah lounge' operator of an MA 273 application to quash an MA 115(5) 'Health, Safety and Nuisance - Smoking in public places' (anti-vaping and anti-smoking) by-law. Such by-laws are first passed by an upper-tier municipality, but not in force until passed additionally by the majority of contained lower-tier municipalities and that majority has a majority of electors in the upper-tier municipality.
Here, the court explains a unique fine-establishing provisions in the POA [s.91.1(2)], where senior judges of the OCJ have the authority to set offence fines:[9] The application judge found that the changes to Schedule A after the by‑law’s enactment do not affect the validity of the by-law. Rather, the changes result from the procedure to establish set fines under s. 91.1(2) of the POA, which vests the authority to establish set fines for by-law offences in the local Regional Senior Justice (“RSJ”) of the Ontario Court of Justice (“OCJ”). The application judge accepted that the Region is a sophisticated municipality that enacts by-laws on a routine basis and found that there was no basis in the record to conclude that the Regional Council was not aware that Schedule A would be altered by the local RSJ exercising her authority to establish set fines after the passage of the by-law.
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[14] I agree with the application judge that the changes to Schedule A to the by‑law after it came into effect do not invalidate the by-law. In short, the changes to Schedule A were made by the local RSJ exercising her authority to establish set fines for proceedings under Part I of the POA. The authority to establish set fines for municipal by-law offences resides with the local RSJ of the OCJ, pursuant to s. 91.1(2) of the POA. The reference to Schedule A in s. 10.1 of the by-law refers to the set fines in Schedule A as established from time to time by the local RSJ. The Schedule A appended to the by-law at the time of its passage was a placeholder until the RSJ exercised her authority under the POA to establish set fines.
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[17] The POA vests the authority to establish set fines for municipal by-law offences in the local RSJ of the OCJ. Section 91.1(2) of the POA provides as follows:<>
(2) The regional senior judge of the Ontario Court of Justice for a region may specify an amount as the set fine for the purpose of proceedings under Part I or II for an offence under a by-law of a municipality in the region.[2] [Emphasis added]
[18] I make two observations about s. 91.1(2). First, the legislature chose to vest the authority to establish set fines for municipal by-law offences in the local RSJ of the OCJ. Second, the local RSJ’s authority to establish set fines for by-law offences is not limited to the authority to establish the dollar amounts of the set fines, but also includes the authority to determine which by-law offences will have set fines. This is clear from the language in s. 91.1(2) that the RSJ “may specify the amount of a set fine … for an offence under a by-law…” (emphasis added).
[19] Section 91.1(2) of the POA was enacted in 2017. However, the authority of the local RSJ of the OCJ to establish set fines for by-law offences pre-dates the enactment of s. 91.1(2). Section 6 of the Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200, gives the Chief Justice of the OCJ the power to establish set fines for an offence – including by-law offences. Section 36(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that, subject to the authority of the Chief Justice, an RSJ of the OCJ “shall … exercise the powers and perform the duties of the Chief Justice of the Ontario Court of Justice in his or her region.”
[20] As a matter of practice, prior to the enactment of s. 91.1(2) of the POA, local RSJ’s of the OCJ exercised the power of the Chief Justice to establish set fines for municipal by-law offences, since these were local matters within each region and did not apply province-wide: Sheilagh Stewart and Jane Moffatt, Stewart & Moffatt on Provincial Offences Procedure in Ontario, 4th ed. (Salt Spring Island: Earlscourt Legal Press Inc., 2020), at pp. 5, 551, 553-54. The enactment of s. 91.1(2) of the POA in 2017 codified the practice that local RSJ’s exercised the authority to establish set fines for municipal by-law offences.
[21] The reason set fines for offences prosecuted under Part I of the POA are set by judicial officers arises from the fact that a set fine is a sentence. Sentencing is a judicial function. Having a judicial official establish set fines under the POA ensures that judicial consideration is applied to the decision of the appropriate fine for an out-of-court resolution of the offence: Provincial Offences Procedure in Ontario, at pp. 5 and 552. [SS: my italics]
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[29] There are two difficulties with the appellant’s argument that changes to Schedule A invalidate the by-law. First, although the appellant concedes that the local RSJ has the authority under s. 91.1(2) of the POA to establish set fines for municipal by-law offences, it characterizes that authority too narrowly. According to the appellant, the authority is limited to setting the dollar amounts of the set fines. As I have explained above, the authority given to the local RSJ under s. 91.1(2) of the POA is broader than that. It includes the authority to decide which offences to establish set fines for.
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[32] The appellant also argues that the reference in s. 10.1 of the by-law to Schedule A incorporates the version of Schedule A attached at the time the by-law was passed into the by-law itself. According to the appellant, the effect of this incorporation is that changes to Schedule A constitute amendments to the by-law and would invalidate the by-law. I disagree.
[33] Section 10.1 of the by-law must be read in the context of s. 91.1(2) of the POA. The reference in section 10.1 of the by-law to “set fines” can only be understood as a reference to set fines under the POA. As noted above, the authority to establish set fines for municipal by-law offences rests with the local RSJ, not with the Region. Within that authority, the RSJ may change the amount of set fines and the offences for which set fines are established from time to time. In light of this context, the reference in s 10.1 of the by-law to the set fines being set out in Schedule A must be read not as referring only to the placeholder Schedule A that was attached to the by-law at the time it was passed, but rather to the set fines established by the local RSJ from time to time under the authority in s. 91.1(2) of the POA.
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[38] I also agree with the application judge that there is nothing untoward about the changes made to Schedule A after the by-law was passed by the Region and consent was given by a majority of lower-tier municipalities. Set fines for municipal by-law offences are set regionally in order to address specific local by-laws and also to allow municipalities to request set fines that they believe appropriate for a particular offence and in the context of local circumstances: Provincial Offences Procedure in Ontario, at pp. 553-54. As occurred in this case, municipal staff may draft proposed short form wording and may request specific amounts as set fines. But the ultimate authority to establish set fines for by-law offences rests with the local RSJ. On the record in this appeal, it is clear that the authority to establish the set fines was exercised by the local RSJ in February 2020 and June 2022. The exercise of that authority did not amend the by-law. It only affected the set fines. It did not invalidate the by-law.
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