There were several OHS sentencing cases from the Provincial Court of Alberta in 2006 which confirm an expected trend towards higher fines for corporations and individuals. All of these decisions involved the new maximum fines which came into force in December 2002. It took several years before these test cases wound their way through the court system because of the two-year limitation period within which the government can lay charges, as well as the inherent delays in our overburdened court system. Nevertheless, the cases eventually came before the courts, all of them with guilty pleas, and the emerging message is clear: the courts will be taking violations of OHS legislation very seriously in the years to come.
The first of the important sentencing decisions involved a 27-year-old who fell to his death from a fourth floor balcony on a condominium construction project in Edmonton. The balcony was unguarded at the time. There were two forms of fall protection readily available for the worker to use. For whatever reason, he chose not use either form. By the time the case came before the courts, the employer was bankrupt and unrepresented. The two directors of the company were therefore ordered to attend court, and on behalf of the defendant company, entered a guilty plea for failing to ensure the health and safety of a worker. The Crown approached the case as one of the first fatality cases wherein the new maximum penalties applied and sought a $300,000 fine plus a $45,000 victim fine surcharge. The Court agreed and sentenced the employer accordingly, thereby establishing a record level fine which more than doubled the previous highest fine ever imposed in Alberta for an OHS offence.
The second case involved a bottle recycling company where one of the employees became entangled in a large cardboard compacting machine and was fatally injured. The company had purchased the machine second-hand and had used the machine without incident for approximately nine months before the accident. It was unclear from the evidence exactly how the worker became entangled in the machine; however, there was evidence to suggest that the safety mechanism had been tampered with and that the manufacturer of the machine had failed to identify a pinch point as the plate that crushed the cardboard returned to its starting position.
The defendant employer was a small family-owned company with three full-time employees and two part-time employees. The owners of the company were on vacation when the accident occurred and had no knowledge that one of their employees had by-passed a safety mechanism on the machine a week before the accident, while the owners were away. Nevertheless, the defendant company plead guilty to section 12 of the OHS Regulation. The sentence was contested between the Crown and Defence. The Crown relied heavily upon the decision described above and sought a penalty between $300,000 to $350,000. The Defence sought a penalty between $50,000 to $100,000.
After approximately a day of argument from counsel, some last minute negotiations resulted in an offer from the Crown Prosecutor to resolve the case by way of a joint submission for a penalty of $200,000 inclusive of the 15% victim fine surcharge. The Court accepted this joint submission and imposed the penalty as suggested by counsel, including distributing the bulk of the penalty between NAIT and the Job Safety Skills Society. The third important case involved a 14-year-old who worked part-time for a museum. His main duties were to cut grass and control the weeds for the museum. His father worked full-time for the museum as a mechanic. A week before the accident, the young worker had been helping sandblast the truck box of a military truck. On the day of accident, the work was continuing on the truck with the approval of the father. The young worker was left alone for a brief period of time after which the manager discovered the young worker underneath the box of the truck which had fallen on him. He died from his injuries. It was unclear how the box could have fallen on the young worker, despite many tests being conducted to determine the amount of force needed to make the box of the truck fall. Wind may have been a contributing factor.
In this case, the young worker only had 8 to 9 hours of experience in sandblasting and it was alleged he did not have sufficient maturity or training to be responsible for his own safety. The Crown and Defence made a joint submission to the Court that consisted of a guilty plea for failing to ensure the health and safety of a worker. The fine agreed to was for $5,000 and a section 41.1 order for a transfer of land valued at $495,000. All remaining counts were to be withdrawn. The Court agreed with the joint submission and imposed the penalty recommended by counsel. The Court ordered that the Defendant pay a $5,000 fine and transfer the land equal to $495,000 within 180 days for a runway extension critical from a safety standpoint for the citizens of Wetaskiwin. The fourth important case involves a foreman of a construction company that was preparing curbs and sidewalks at a residential construction project in Edmonton. The foreman had over 30 years of experience in the construction industry and had always taken safety issues seriously. Before beginning the project, the foreman had ensured a hazard assessment had been performed for the work and that Alberta One Call had located all existing utility lines. The work proceeded on that basis until winter came.
In the spring, the foreman and his company returned to work on the project. The foreman ensured a hazard assessment was done for the work continuation and he made inquiries with engineers on site as to how the homes in the area were being heated. He was assured they were heated with propane and not by way of underground gas. On that basis, he exercised his professional judgment and decided not to call Alberta One Call for the work being performed. The work in question involved mixing soil with a cultivator to a depth between six to ten inches. No gas lines were thought to have been installed and any such gas lines were to be a depth far in excess of the cultivator. However, the company policy of the foreman required him to make the call and he did not. The foreman did not know that during the winter break a subcontracted company had installed an underground gas line in the area. The project plans required that all gas lines be installed at a depth of at least .81 metres below sidewalks. The actual installation was much less and, according to a post-accident survey, the gas line was not installed in accordance with site plans. The cultivator struck the line, causing an explosion which fatally injured the equipment operator. This was not a case where the foreman blatantly disregarded safety policies. He had a well documented history of strictly following company policy and had made hundreds of calls for utility locates in his career. However, on the day in question, no call was made.
The foreman plead guilty under the worker provisions of the Alberta OHS Act. The Court accepted the joint submission suggested by the Crown Prosecutor and defence counsel and imposed a penalty of $50,000. Of that penalty, $45,000 went towards the preparation of a DVD designed to help victims of workplace accidents and their families cope with their losses. All charges against the employer were withdrawn. The employer continues to employ the foreman in its operations. The employer also voluntarily paid $45,000 of the penalty on behalf of the foreman.
Contact David Myrol for more info: 780.482.9290 dmyrol@mross.com
