Taking a progressive approach
Progressive enforcement is a good alternative strategy. Just as the name suggests, it is somewhat similar to the concept of progressive discipline. With this strategy, punishment increases proportionately based on the severity and number of offences committed. Progressive enforcement begins with education. For example, when a swimming pool owner/operator does not comply with the regulation, the PHI would, without the threat of enforcement action, make every effort to inform the operator of the regulation requirements, the possible reasons for non-compliance, as well as discuss what needs to be done to achieve compliance.
The PHI would allow perhaps more than one opportunity to comply. If that does not result in the desired modification in the behaviour of the owner/operator, and ultimately compliance with the regulation, then the next step would be issuing a POA Part I ticket (where available).
Subsequent non-compliance would result in the progressive escalation of enforcement actions. For instance, a POA Part III charge would be issued, and upon conviction, a substantial fine would be requested along with a probation order. In the case of a corporate owner, a prohibition order and piercing of the corporate veil would be pursued. Each progression would result in increasingly heavier penalties until the desired change of the offender’s behaviour is achieved.
Progressive enforcement involves the use of various laws and the powers granted under them in a sequence to achieve the desired outcome. This is best illustrated by the following case study.
A case of non-compliance
This case study involves a class B indoor swimming pool owned by a corporation registered under the Ontario Corporations Act (corporate owner) located in a multi-residential apartment building. The swimming pool is unsupervised and serves residents of 30 units.
Over the span of two years, the swimming pool has been inspected eight times by the local public health unit. Of the eight inspections, six have resulted in re-inspections due to violations that were considered significant—meaning the offences could have, if not corrected in a timely manner, impacted the health and safety of bathers. The list of violations also included multiple minor infractions that were not serious enough to warrant immediate closure.
Upon each re-inspection, despite the swimming pool operator fixing the problems which led to the significant violation, multiple minor infractions, including proper pool size and depth markings and poor daily record keeping, remained uncorrected.
After each inspection, the PHI reviewed the violations with the swimming pool operator and discussed the reasons for non-compliance. The operator was then provided with an inspection report, which identified all violations, and provided direction on what needed to be done to achieve compliance within a specified timeframe. At the time of each re-inspection, the PHI further provided the operator with a completed inspection report, which again identified the remaining minor infractions that were still in non-compliance. Although the operator complied with the requirements of the infractions considered to be significant (major), minor violations were ignored over several inspections and re-inspections.
The PHI made every effort to educate the operator on the importance of compliance with all regulations, including minor infractions. As often encountered by PHIs, this operator provided the inspector with a litany of excuses as to why the infractions were not fixed and promised to comply by the next inspection.
To affect change in the behaviour of this swimming pool operator, the public health unit decided to pursue a progressive enforcement strategy. In doing so, it used the provisions under HPPA sections 100 and 100(4), and POA Part III. HPPA section 100 identifies all offences under the act, and Section 100(4), states “any person who contravenes a regulation (under this act) is guilty of an offence.”
In legal terms, a ‘person’ can be an individual, such as an operator of a swimming pool/hot tub, or a company that is a corporation registered under the Ontario or federal corporations act (corporate owner). Therefore, in this case, both the operator and the corporate owner of the swimming pool could have been charged for maximum impact in achieving behaviour change. However, after due consideration, the corporate owner of the swimming pool was charged and a summons was issued to its director. The wording of the charge on the summons included the offence and read: “owner failed to keep signed records setting out free available chlorine and total chlorine as required by section 8(a) of the Public Pools Regulation 565” and the charge was made contrary to HPPA section 100(4).
The corporate owner challenged the charge and the case went to trial. At the trial, the PHI provided testimonial evidence under oath supported by documentary evidence, which included inspection/re-inspection reports, photographs, and a certified corporate profile report. The defence council did not call his client to provide evidence. After reviewing the evidence, the justice of the peace presiding over this case found the corporate owner of the swimming pool guilty as charged and levied a $500 fine.