No conviction in health insurance case

Employer charged costs instead of fine

After hearing the circumstances of an employer’s failure to maintain health insurance for two employees, Magistrate Philippa McFarlane said she was going to take the exceptional course of ordering no conviction to be entered against his name. 

Instead of a fine, she ordered employer Arnold Berry to pay costs of $2,300. 

The defendant had pleaded guilty to failing to continue insurance coverage for the two men between May 2010 and April 2012. 

Defense attorney Steve McField told the court that his client had attempted to settle the matter administratively. 

Crown counsel Kenneth Ferguson confirmed that, during a previous court appearance, another representative from the Office of the Director of Public Prosecutions indicated no objection to no conviction being recorded. 

Mr. Ferguson noted that the defendant’s business, Berisons Development Co. Ltd., had also been charged, but those charges were left on file. He advised that neither employee had ever sought to use the insurance and neither had suffered any financial loss. 

Mr. McField set out his client’s career, which culminated with his decision to start his own business drafting plans for homes. He then saw the opportunity for construction and started his company in 2004, hiring people to do building and repair work. There was no difficulty making insurance premium payments. 

The world economy began to slow down in 2008 and many small businesses experienced money flow problems, Mr. McField said. Mr. Berry tried to keep his employees. He paid them and made no deductions from their pay for their share of the insurance premium, but asked them to pay it on their own. They did not pay it and eventually went to work for someone else. Mr. Berry continued his drafting work on his own. 

The magistrate said the offense had been a serious error in judgment. “If you can’t afford to have insurance for employees, you shouldn’t have them,” she commented. 

A fine would typically be the equivalent of the amount of insurance that had not been paid – in this case, $3,450. Fines are not imposed when no conviction is recorded, so Mr. Ferguson asked for costs. The magistrate gave one-third credit for the guilty pleas and assessed costs of $2,300.