R. v. A-1 Mushroom et al. Date:, 2011 BCPC 458

Citation: R. v. A-1 Mushroom et al. Date: 20111125 2011 BCPC 0458 File No: 183991-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A-1 MUSHROOM SUBSTRATUM LTD. H. V. TRUONG LTD., HA QUAN TRUONG, THINH HUU DOAN, VY TRI TRUONG, VAN THI TRUONG ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. W. BALL Counsel for the Crown: R. Kockx Counsel for the Defendant: L.J. Mackoff

Place of Hearing: Surrey , B.C. Dates of Hearing: September 16, 22, 2011 Date of Judgment: November 25, 2011 [ 1 ] These are oral reasons for sentence in respect to the Surrey file number 183991-1. INTRODUCTION [ 2 ] On September 5th, 2008, at the mushroom farm where they all worked, a series of profound tragedies occurred in the lives of each of five victims, as well as their families and loved ones. Ut Van Tran, Han Duc Pham, Jimmy Chi Wai Chan are deceased. Thang Phuoc Tchen and Michael Phan suffered permanent brain damage. At the same time, the lives of all of the accused were changed forever.

The entire community involved in this mushroom farm suffered, and will continue to suffer, a deep and unrelenting loss. THE CHARGES [ 3 ] On Information 183991, the accused, A-1 Mushrooms Substratum Ltd., pled guilty to Counts 1 and 2 as an employer for failure to ensure the health and safety of its workers and workers other than its own workers, contrary to s. 115(1)(a)(

i) and s. 213(1) of the Workers Compensation Act, herein after called the Act . H.V. Truong Ltd. also pled guilty on Counts 2 and 3 to identical charges. [ 4 ] On Counts 9 and 10 in that Information, the same accused respectively pled guilty as employers to failing to provide their workers with information, instruction, training and supervision necessary to ensure the health and safety of those workers contrary to s. 115(2)(

e) and 213 of the Act . [ 5 ] On Count 14, the same accused as employers pled guilty that they had each failed to ensure that all confined-space hazards were eliminated or minimized, and that work was performed in a safe manner, contrary to s. 9.4 of the Occupational Health and Safety Regulation, and 213(1) of the Act . [ 6 ] On Count 20, the accused, Ha Quan Truong and Thinh Huu Doan, pled guilty as officers and directors to failing to ensure that A-1 Mushroom Substratum Ltd. complied with the Occupational Health and Safety Regulations and

Part 3 of the Act , contrary to s. 121 and 213(1) of the Act . [ 7 ] On Count 21, the accused, Ha Quan Truong and Van Thi Truong, pled guilty as officers and directors to failing to ensure that H.V. Truong Ltd. complied with the Occupational Health and Safety Regulations and

Part 3 of the Act , contrary to s. 121 and 213(1) of the Act . [ 8 ] On Count 25, the accused, Thinh Huu Doan, pled guilty as a supervisor for failing to ensure the health and safety of workers under his direct supervision, contrary to s. 117(1)(

a) and 213(1) of the Act . THE ROLE OF THE COURTS [ 9 ] The court is obliged to sentence the accused in this case in accordance with the provisions of the Criminal Code , and in particular, s. 718 , 718.1 , and the following of the Criminal Code . There the principles to be applied in sentencing proceedings are set out. [ 10 ] The penalties and offences involved are as noted, specified in the Workers Compensation Act and in the sections mentioned above.

Nothing in any of these sections or any other provisions of the Criminal Code provides any basis for the court to calculate the value of the loss of or damage to a human life. The court has no ability to impose a sentence which is equivalent to or provides recompense for the value of a human life.

Nothing this court can or will do today is in any way an estimate of the value of a human life, or lives, or for the grief or loss of those who have suffered loss, either directly or indirectly. [ 11 ] The court acknowledges that in this case profound loss has occurred in the deaths of three men, taken entirely from the loving arms of their families, and the grave and debilitating injuries to two others which continue to place great strain on their families and loved ones. [ 12 ] In these Reasons for Sentence, the court will outline the circumstances of the offences to which the accused have entered pleas of guilty, followed by the circumstances of the offenders.

The Reasons will include a discussion of the obligations and responsibilities of employers and officers, as well as directors of employer companies set out in the Occupational Health and Safety Regulations made pursuant to the Act , which will be followed by a review of prior legal cases. [ 13 ] Prior legal decisions serve as a guide for the court to establish fit and appropriate sentences. [ 14 ] The circumstances of victims and their families will be reviewed, and finally, the court will impose a sentence found appropriate for each of the accused. [ 15 ]

Part 3 of the Workers Compensation Act sets out general obligations and responsibilities for a number of workplace parties to ensure the health and safety of workers in a workplace. In s. 115(1)(

a) of the Act , employers must ensure the health and safety of all workers working for the employers, and any other workers present at the workplace, at which the employer's work is being carried out. Section 115(2) provides several examples of the types of responsibilities that an employer must fulfil to ensure the health and safety of workers. In particular, s. 115(2)(

e) provides that employers must provide workers with information, instruction, training and supervision necessary to ensure the health and safety of those workers in carrying out their work, and to ensure the health and safety of other workers at the workplace.

[ 16 ] In addition to employers, the Act also creates duties for supervisors. In s. 117(1)(a), supervisors must ensure the health and safety of all workers under the direct supervision of the supervisor. [ 17 ] Since October of 1999, directors and officers of a corporation also have a statutory duty under the Act to ensure the health and safety of workers. Pursuant to s. 121, every director and officer of a corporation must ensure that the corporation complies with

Part 3 of the Workers Compensation Act, the regulations, and any applicable orders. This means that even silent or non-participating directors or officers, and, in other words, those directors and officers not involved in the daily operations of a corporation, must still ensure that the corporation meets the health and safety standards provided under the Act and their regulations.

No director or officer of a corporation is exempt from ensuring that the corporation meets the required standards of health and safety. [ 18 ] The Occupational Health and Safety Regulation provides for a number of specific duties related to specific hazards. Relevant to these proceedings are "confined spaces" as defined in

Part 9 of the Regulation. A confined space is defined under s. 9.1. If a confined space is found to exist, s. 9.4 provides that an employer must ensure that all confined space hazards are eliminated or minimized so that work is performed in a safe manner.

Section 213 of the Workers Compensation Act makes it an offence for any person to contravene

Part 3 of the Act or its regulations, including the Occupational Health and Safety Regulation. The general penalties for such an offence are outlined in s. 217 of the Act which provides for a maximum fine of $603,059.78 at the time of this offence, and/or a maximum jail sentence of six months. CIRCUMSTANCES OF THE OFFENCES [ 19 ] The corporate accused, A-1 Mushroom Substratum Ltd., hereinafter called "A-1 Mushroom", and H. V. Truong Ltd., hereinafter called "H.V. Truong", operated a commercial industrial facility to grow mushrooms for sale on a property located on 16th Avenue in Surrey, British Columbia.

A-1 Mushroom produced and provided to H.V. Truong, mushroom substratum, or compost, which the latter company used as a growing medium for the commercial production of mushrooms. The mushrooms were then harvested and marketed through a related company called Farmers Fresh Mushrooms Ltd. [ 20 ] As part of the process, there were present two composting barns referred to as the east and west barns. Near those barns was a containment facility which contained two large water storage tanks.

On the edge of the containment facility, several pumps were located which assisted the drainage of a brown water slurry and the pumping of that slurry back into what was known as the brown water tank, a tank holding a substantial amount of this reclaimed liquid. Originally, these pumps and related plumbing were located in the open air on the floor of the containment facility. There was in this location little possibility of the build-up of dangerous gases.

Later, to keep the pumps and related pumping equipment from freezing or being damaged during periods of inclement weather, a small building or pump shed was constructed over the pumps and related plumbing, and the pumps were then installed at a higher elevation above the floor of the containment facility. This small building was an "enclosed space" as defined in

Part 9 of the Health and Safety Regulation noted above, and created the confined or enclosed environment where the disastrous events of September the 5th, 2008 occurred. The interior and exterior of the pump shed are shown in a number of the photos contained in Exhibit 1 in these proceedings. [ 21 ] While repairs were being conducted to the floor of the west barn, which will be discussed later in these Reasons, the amount of water used in the processing of the slurry was reduced, resulting in clogging of pipes leading to the pumps.

The material which clogged the pipes was fragments of straw in the waterborne slurry which came from the composting process. On prior occasions when the plumbing and pumps were not located in an enclosed space, the pipes adjacent to the pump had been cleared without difficulty by removing bolts holding a flange in the pipe and removing the blockage by hand. [ 22 ] Prior to the incident, there was an observation of the brown water tank which concerned three individuals who thought something strange was happening. On September the 1st, 2008, Jack Polson, then an environmental consultant to the farm, was with Mr.

Doan in the vicinity of the brown water tank when both observed the surface of the brown water tank rise significantly and then drop suddenly, releasing a burp or belch of gas. Both men were shocked by what they saw in the brown water tank. Neither had seen such an event previously. [ 23 ] Mr. Polson believed that carbon dioxide may have been the gas which was expelled from that tank, and that this gas was generated by the decompensation occurring the composting process. Mr. Polson was concerned and phoned a Mr. D'Arcy Ashe, who was his predecessor at the facility, and told him of this observation. Mr.

Polson reported that D'Arcy Ashe had never seen anything like that himself on any prior occasion. [ 24 ] On September 5th, 2008, the blockage in the pipe, combined with the level of water which was not moving, resulted in the contents of that tank becoming anaerobic. [ 25 ] In the days leading up to the accident, beginning on September the 1st, 2008, the suction pump, which I have described earlier, became clogged with debris and ran dry causing damage to that pump. Mr. Doan and Mr. Tran tried to make contact with their plumber, a Mr. Hock, who was then unavailable. Over the next couple of days Mr.

Hock came to the site and, with the assistance of Messrs. Doan and Tran, attempted to remove the blockage in the suction pump. [ 26 ] For a time a bypass or auxiliary pump was used, and that is shown in photos 3 and 4 in Exhibit 1. Finally, on September the 5th, Mr. Hock returned to the site at about 9:00 a.m. and attempted to repair the suction pipe, at the pump end of the suction pipe which had been completely blocked with debris, by using compressed air. In company with Mr.

Hock, Ut Van Tran and Thang Phuoc Tchen, an employee of A-1 Mushroom, went into the pump shed to assist in the attempt to unblock the suction pipe. The attempt was not successful using compressed air. [ 27 ] Mr. Hock told investigators that he told Mr. Doan to hire a sewer pumping service with hopes that a piece of equipment known as a sewer auger, used by the sewer pumping service, would clear the line. Mr.

Hock, a trained plumber, told the investigators that he did not think the pump shed was a confined space and did not think there was a problem with workers standing in the water of the pump shed to work on the plumbing and pumps located there.

[ 28 ] At approximately 4:00 p.m. Mr. Hock left the site, believing that Mr. Doan was going to make contact with the sewer pumping service. Mr. Doan does not recall being given that advice by Mr Hock and did not contact the sewer pumping service. [ 29 ] Mr. Doan, then the supervisor of the operation, requested Messrs. Tran and Tchen to return inside the pumping shed to remove the bolts from the flange holding a valve in place, shown in Exhibit 1, photo 17, and clear the blockage there. This identical action had taken place on several prior occasions without incident or injury to anyone. Messrs.

Tran and Tchen went to the bottom of the pump shed where there was about 16 inches of brown water on the floor of the shed inside the containment area. Mr. Doan was standing inside the pump shed door on the platform of planks above the pumps. [ 30 ] Once the flange was opened by removing the bolts which held a valve in place, the investigators determined that a large amount of hydrogen sulphide gas in high concentration was released into the enclosed space in the pump shed. Ut Van Tran told Mr. Doan that there was a strange odour. Mr. Doan told Messrs. Tran and Tchen to come out of the pump shed. Mr.

Tran inhaled the gas, died immediately and pitched forward into the brown water. Mr. Tchen attempted to rescue Mr. Tran. Mr. Doan called for assistance from Mr. Truong, asking for an ambulance to be called. Mr. Truong called the 9-1-1 emergency number seeking assistance, but he was not aware that the emergency problems were being caused by gas poisoning. [ 31 ] Han Duc Pham overheard the call made by Mr. Doan and rushed into the pump shed to try and rescue his colleagues. Inside the shed, he was overcome by the hydrogen sulphide gas and died.

Jimmy Chi Wai Chan was working in the east composting barn and heard the commotion at the pump shed. He also rushed in to help his fellow workers. He too was overcome by the hydrogen sulphide gas and died. [ 32 ] Mr. Truong had gone to the front gate of the property to assist Emergency Health Services onto the site and guide first responders to the pump shed. He spoke to Michael Phan who rushed to the pump shed. Mr. Phan was overcome by gas after entering the shed and suffered irreparable brain injuries. [ 33 ] There is no doubt on any view of this matter that Mr. Tchen, Mr. Phan, Mr. Chan and Mr.

Pham are heroes for their selfless attempts to help their co-workers inside the pump shed. It is doubtful that any of them understood the nature of the danger they would encounter entering that shed, but their intent to save their co-workers was foremost in their minds. [ 34 ] It should be noted that once ambulance attendants arrived at the shed, they quickly realised that gas poisoning was occurring, and those attendants were not equipped with enclosed space rescue equipment.

The ambulance attendants had to undertake the agonizing task of preventing other workers and family members, who were present at the site from entering the pump shed, while those in the pump shed could be heard moaning. Eventually enclosed space rescue personnel arrived and all inside the shed were removed. [ 35 ] Mr. Doan also suffered a minor level of gas caused injury as he was found sitting or lying on the ground by ambulance attendants, suffering disorientation, breathing difficulties and tachycardia, or very fast heartbeat.

He was treated and observed without apparent medical sequela. [ 36 ] While the circumstances surrounding the offences charged were unique, the regulation under the statute anticipated that problems would occur in confined spaces as a result of lack of oxygen, the presence of oxygen in levels insufficient to support human life, or the presence of other gases in deadly concentrations.

The analysis of enclosed space created by the pump shed simply had not occurred to those in the management of this operation, or to those with professional experience who were providing specialized advice to optimise the commercial production of mushroom compost at this facility. None of the members of the management or employees had any formal health or safety training, and despite the presence of a number of professionals advising the management of the defendant companies, no formal health and safety regime had been organized.

There were no formal employee safety meetings or instruction sessions relating to safety held at the mushroom farm. [ 37 ] Following the tragic incidents of September the 5th, 2008, Workers' Compensation Board inspectors and fire personnel spent considerable time on the farm which was then shut down. The pump shed was dismantled with great care taken to avoid exposure to any other worker to the effects of hydrogen sulphide or carbon dioxide gases which were detected to be present in the plumbing of the water recovery system. CIRCUMSTANCES OF THE OFFENDER [ 38 ] Mr.

Mackoff for the accused provided a helpful written brief describing the circumstances of each of the accused, and I have borrowed freely from that document. [ 39 ] Ha Quan Truong was born in Vietnam in 1951. After the fall of the Vietnamese government in the 1970's, he was imprisoned in a re-education camp for about three-and-a-half years. Following his release from that camp, he left Vietnam with his wife, Van Thi Truong, and son, travelling to a refugee camp in Malaysia. In 1980, sponsored by a church refugee program, the Truong family immigrated to Canada.

A second child was born shortly after their arrival in Canada. Upon arrival in Canada, the Truongs had few worldly possessions and were unable to speak English. The church sponsors helped them to find employment and assisted with their housing. The parents worked opposite shifts to one another so that one of them would be available to provide childcare. Mrs. Truong worked in a restaurant and Mr. Truong in agriculture. Eventually, both of them began working as mushroom pickers in the Aldergrove area. [ 40 ] In Mr.

Mackoff’s brief, the following appears at paragraph 6: It is noteworthy that none of the employers for whom the defendants worked provided formal safety training, nor did they have any program for employee health and safety in place. They had never been introduced to the concept of WCB oversight of farm workers during the course of their employment. [ 41 ] Mr. Truong achieved success by dint of hard work and became a supervisor at the farm where he worked. Later, the Truongs were able to rent a mushroom farm, which they operated manually, and were able to make that farm a success. Next, the Truong's were

able to purchase a small mushroom farm, which became the family business. All of these activities occurred between 1980 and 1985. [ 42 ] Over the following ten years, Mr. and Mrs. Truong and two of Mr. Truong's brothers sponsored two additional brothers of Mr. Truong to immigrate to Canada. All have settled in the Langley area and the five brothers operate mushroom farms there. In 1986 H.V. Truong Ltd. was incorporated to operate the mushroom farm.

It subsequently moved business locations three times, eventually settling in its present location in 2003. [ 43 ] Without corporate or tax planning for the share structure of this company or for the appointment of its officers and directors, Mrs. Truong became a shareholder and director to recognize her contribution as an early employee and the person in charge of the domestic life of the family. She had no day-to-day involvement in the operations of the mushroom farm. Throughout this whole process, neither Mr. nor Mrs.

Truong has ever received welfare or employment insurance benefits. [ 44 ] Thinh Huu Doan was a refugee from Vietnam who immigrated to Canada as well. He became the operations manager for A- 1 Mushroom, as well as a director and 25-percent shareholder of that company. Today his share interest has no value as A-1 Mushroom is bankrupt and he is personally unemployed. His English language skills are limited. As a result of the tragic circumstances of this case, an investment which he had made of some $300,000 in A-1 Mushroom has been entirely lost. H.V.

Truong has not, in its 22-year history, had an industrial accident, nor has it been cited for violations of any health or safety regulations. [ 45 ] A significant expense in the mushroom growing industry is the cost of growing medium known as mushroom substrate or compost. Mr.

Truong decided to invest in a facility to create mushroom substrate to supply his own and his brothers' farms to lower their production costs and allow them to sell any excess supply of substrate to other growers. [ 46 ] In 2004, with the assistance of a qualified consultant who developed a business plan, it was decided to hire a contractor to fabricate a mushroom substrate facility to be operated by A-1 Mushroom. The consultant recommended a company known as BuildWorks which owned a patent for a method of aerating composts through pipes buried in the cement floor of a production barn. [ 47 ] In Mr.

Mackoff's brief, the following appears: BuildWorks represented themselves as possessing the knowledge and experience to build compost facilities on a design build basis. BuildWorks retained civil and structural engineers who reviewed and stamped approval on the plans to build the compost facility.

It was always the intention of the defendant that A-1 would be a state of the art composting facilities and they placed great reliance in those possessed of the specialized skill and knowledge to ensure that it would be so. [ 48 ] A-1 Mushroom completed construction of the two composting barns in October of 2005 at a cost of approximately two-and-a- half million dollars where the secured lender was the Bank of Nova Scotia.

At that time there were four companies in British Columbia producing mushroom compost, only one of which located in the Interior of the Province were prepared to sell the product to other growers. [ 49 ] Unfortunately, in August of 2006 a portion of the floor of the west composting barn began to crumble and later collapsed into the air flow piping system because the concrete pour was found to be too thin to support the weight of the equipment which was designed to be placed on the floor in the barn to process the compost.

A-1 Mushroom then hired new engineers and a repair of the floor and aeration system was undertaken at a cost of $1.7 million. [ 50 ] A lawsuit was brought against the contractors and designers of the original compost barns which was eventually settled, the entire proceeds of the settlement being paid directly to the secured creditor. [ 51 ] Problems occurred during the reconstruction with offensive odours being released into the neighbourhood surrounding the mushroom barn.

Inspections were conducted by various authorities and composting operations were shut down for a period which ended in October of 2007 when operations were recommenced. [ 52 ] As operations were being conducted at a much lower volume in the composting barns than design specification, blockages of the brown water recovery pumps occurred. The accumulation of sludge and debris caused the brown water system to become anaerobic which led to the production of hydrogen sulphide gas, a gas which is highly toxic in significant concentration.

It is a gas that most persons are familiar with as it is commonly smelled in conjunction with natural gas usage common in family homes. That, however, is an amount of hydrogen sulphide which is at a very low concentration. In high concentration, the gas is virtually odourless and highly toxic.

This concentration of hydrogen sulphide gas occurred in the period immediately prior to the tragic incident which brings the parties to court. [ 53 ] According to the submission filed, the WCB had not issued any warnings or published materials related to the accumulation or dangers of hydrogen sulphide gas in mushroom farming prior to this incident, although subsequent publications have occurred. [ 54 ] The individual accused and professional contractors advising them were not aware of hydrogen sulphide gas presenting a health or safety hazard.

As noted, the flange valve combination from which the fatal gas was discharged in this case had been opened on several prior occasions without consequences. [ 55 ] At paragraph 41 of Mr. Mackoff's submissions for the accused, the following appears: That said, these defendants recognize and acknowledge through their pleas that they fell short of their obligations as employers, supervisors and operators of a business to take steps that, regardless of their state of knowledge of any specific danger, might have been reduced, but probably not eliminated the harm done.

Specifically, they did not have formal training or supervision. They were not versed in what constituted a confined space. They did not provide an adequate method of ingress or egress into the confined space and they were not sufficiently vigilant for the safety of their workers. Their approach and attitude was a product of decades of experience in an agricultural industry that operated on an ad hoc basis. Mr. Miller of the WCB stated in his interview that there was not a great deal of direction or vigilance on the part of the WCB in monitoring farm operations.

[56] It is submitted that A-1 Mushroom is now bankrupt and none of the personal defendants will, in the future, operate acomposting facility. With the forbearance of its secured creditor, H.V. Truong continues to operate with 25 percent fewer employees.

Substantial steps have been taken in conjunction with the Farm and Ranch Safety and Health Association to operate the mushroom farmunder stringent safety policies with a safety program, which has addressed confined space issues, implementation of an EmployerAgricultural Health and Safety Program, the holding of regular joint Occupational Health and Safety Committee meetings, regularworkplace health and safety inspections, implementation of risk assessment and exposure control programs for atmospheric hazards andgases, the creation of a written safe work procedures manual, and also training workers in machine safety awareness and proper pesticideawareness, all of this taking place both in English and Vietnamese.

This facility has become a model farm for safety practices followingthese horrific incidents. [57] The value of the mushroom farm with the composting facility was between eight and nine million dollars, and even after thefailure of the floors in the composting barns and repair costs, there was sufficient equity then to support in excess of five million dollarsin debt.

Following the disaster on September the 5th, 2008, the value of the farm had fallen to two million dollars with an additionalmillion dollars spent to discharge a pollution prevention order imposed by the Ministry of the Environment to ameliorate the discharge ofthe sludge and brown water resulting from the clean-up of composting operations. [58] H.V. Truong owes its secured creditor some five million dollars, but has arranged for Farm Credit Canada to purchase thatdebt for approximately two million dollars. The company intends to continue producing mushrooms with reduced operations.

Itsbefore-tax income is anticipated in 2011/2012 at approximately $440,000. Servicing that debt and paying a modest salary to Mr. Truong,permitted by the secured creditor, will consume approximately $250,000 of that sum. A great deal of the balance will be consumed bytaxes. [59] Crown counsel provided the court with a brief of victim impact statements. I have studied these documents. The emotionsdisplayed in the statements are raw and very real.

Great happiness of families has become profound sadness and grieving. [60] Crown counsel, in a very thorough and helpful submission, reviewed a number of recent cases which provided a basis for hissubmissions. While this was a serious case marked by the most tragic of consequences, Crown counsel submitted that jail sentenceswere not appropriate for any of the individual accused. This was principally for the reason there was no prior indication that the problemwhich occurred might be expected, with no prior offence of relevance in farm health or safety area involving workers.

Crown counseltook the position that a fine in the hundreds of thousands of dollars was a fit and appropriate sentence. Crown counsel also sought anorder under s. 219 of the Workers Compensation Act that should be made in this case and provided the court with an outline of thatorder. I have attached the conditions suggested by Crown Counsel to these reasons as Appendix 1. [61] Mr.

Mackoff, for the accused, principally referring to the accused except for A-1 Mushroom, was that a cumulative fine in theamount of $100,000 was a fit and appropriate sentence in the circumstances of this case and given the relative degrees of moralculpability of the parties accused. [62] The brief of authorities provided by Crown counsel and the submissions by both counsel were made on the cases contained inthat brief.

I have considered each of the authorities referred to in the brief, and it is clear that within the principles of sentencing, generaldeterrence has been considered the paramount sentencing principle for public welfare offences such as those contained under theWorkers Compensation Act. Denunciation has also been established as an important principle in sentencing the public welfare cases. Inthe case of R. v. Cotton Felts, (ON CA), 1982 O.J.

No. 178, a decision of the Ontario Court of Appeal, the leadingcase on sentencing of public welfare offences, the court discussing the paramount principle of general deterrence and the imposition of afine there for, said at paragraph 22: Without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be amere licence for illegal activity. In determining the appropriate fine for each of the accused, the authorities provide a number of factorswhich the court is bound to consider. These factors include: (

a) the actual and potential harm to workers or other members of the public; (

b) the degree of blameworthiness attributed to each of the accused; (

c) the size and net worth of the accused corporations; (

d) the scope of economic activity at issue; (

e) the financial ability of each of the accused to pay a fine; (

f) the prior safety record of each accused, and (

g) whether the accused have taken steps to prevent the recurrence of injuries and death in the workplace. [63] Based on the balancing of these factors and the facts stated above, it is clear that the vast bulk of fines in this deadly case areto be paid by the corporations. As the actual activity which led to the deaths involved the manufacture of compost, I am satisfied that thelargest fine should be imposed on A-1 Mushroom, followed by a smaller fine on H.V. Truong, based on injuries to employees.

Theindividual with the most significant authority over the affairs of the accused corporations and therefore subject to the largest individualfine is H.V. Truong, followed by Thinh Huu Doan. Van Thi Truong had a very limited role and is liable only because of her role as adirector of one of the employers. There are no prior safety violations for offences and significant and highly costly steps have been takento prepare and install worker safety programs to prevent recurrence of injuries or death in this workplace.

It is also worthy of note that inexcess of a million dollars was spent on environmental clean up. [64] I have heard and considered the submissions of counsel, read the exhibits and the authorities filed, each of which I haveconsidered with care. All of the victim impact statements that have been filed have also been reviewed and considered to reveal

profound brokenness which occurred in this tragedy. I appreciate the bravery which is required for the writer of an impact statement to open their personal suffering to scrutiny by others; I thank the authors of those statements for their fortitude.

I have reviewed the circumstances of the offenders and offences, noting, among other things, that none of the accused has a prior record for any offence in relation to worker safety. [ 65 ] The sentencing principles of deterrence, both general and specific, as well as denunciation and the protection of the public as provided in s. 718 and following of the Criminal Code were also considered, together with Divisions 13 and 14 of the Workers Compensation Act. [ 66 ] The fit and appropriate sentences in this case are fines in each case.

I will hear from counsel after I finish reading these reasons considering time to pay those fines. [ 67 ] While I appreciate that A-1 Mushroom Ltd. is a bankrupt, I would impose a fine of $200,000 on A-1 Mushroom. For H.V. Truong Ltd. there will be a fine of $120,000. For Ha Quan Truong personally, there will be a fine of $15,000. For Van Thi Truong there will be a fine of $5,000. For Thinh Huu Doan there will be a fine of $10,000 due to his supervisory role of employees.

The fines are payable to the Workers' Compensation Board for deposit to the accident fund, pursuant to s. 217 of the Workers Compensation Act. [ 68 ] The victim fine surcharge will apply. THE TERMS OF THIS ORDER [ 69 ] The order which I make also includes the terms or conditions proposed by the Crown for an order under s. 219, and as I understood matters, Mr. Mackoff, there was no objection to those terms being imposed. [ 70 ] MR.

MACKOFF: Correct, Your Honour. [ 71 ] THE COURT: And I am simply going to, so we have a complete record, read those terms into the record and will attach those as a second appendix to these reasons. A-1 Mushrooms Substratum Ltd., H.V. Truong Ltd., Ha Quan Truong, Vi Tri Truong and Thinh Huu Doan are not to be involved in the operation of a mushroom composting facility in any capacity including employer, director, officer, manager, supervisor or worker.

Ha Quan Truong, Van Thi Truong and Thinh Huu Doan are to report forthwith to the WCB whenever they become a director or officer of a company and provide the name and location of that company, including its workplace, and further they are to ensure that every company in which they are a director or officer is in compliance with

Part 3 of the Workers Compensation Act , the regulations and any applicable orders. Ha Quan Truong, Van Thi Truong and Thinh Huu Doan are to report forthwith to the Workers' Compensation Board of British Columbia whenever they supervise workers, and further, they are to be knowledgeable about

Part 3 of the Workers Compensation Act and those regulations applicable to the work being supervised, and are to provide workers they supervise with the information, instruction, training and supervision necessary to ensure the health and safety of the workers. H.V.

Truong Ltd. is to report forthwith to the Workers' Compensation Board whenever it hires a worker, and provide the name, address and phone number of the worker, and further, it is to provide all of its workers with the information, instruction, training and supervision necessary to ensure the health and safety of its workers and other workers in the workplace. An application for variation of this order may be made to the court that made the order, by the Attorney General, or the person against whom the order under s. 219 was made.

Before hearing an application the court may order the applicant to give notice of the application in accordance with the directions of the court. On application, if the court considers variation appropriate because of a change of circumstances, the court may make an order doing one or more of the following: (

a) Changing the original order or any conditions specified in it; (

b) Relieving the person absolutely or partially from compliance with all or part of the original order; (

c) Reducing the period for which the original order is to remain in effect. [ 72 ] And Mr. Kockx, my understanding is this order may be made for a period of up to three years. [ 73 ] MR. KOCKX: That's correct, Your Honour. [ 74 ] THE COURT: Any submissions, Mr. Mackoff, with respect to that? [ 75 ] MR. MACKOFF: No, Your Honour. [ 76 ] THE COURT: I am going to make the order then for a period of three years. [ 77 ] Now, Mr. Mackoff, I did say that I would ask for your comments or submissions with respect to time to pay fines. What

would you like to tell me? [ 78 ] MR. MACKOFF: Yes, Your Honour, with respect to the individuals, would Your Honour please grant one year time to pay? [ 79 ] THE COURT: That is perfectly reasonable. There be a one-year time to pay, and they will have to sign Promise to Pay forms before they leave the courthouse today. [ 80 ] MR. MACKOFF: With respect to H.V. Truong, its financial circumstances are not sufficiently known to me presently to give you an accurate forecast in terms of time limits of payment.

Might 24 months be afforded for that corporation? [ 81 ] THE COURT: That seems appropriate to me, and will order that H.V. Truong Ltd. will have two years to pay the $120,000 fine. [ 82 ] MR. MACKOFF: And I make no submissions with respect to A-1. [ 83 ] THE COURT: I think with respect to A-1 we will simply leave it as a fine in the circumstances. [ 84 ] Is there anything that I have left out or needs to be completed, Mr. Kockx? [ 85 ] MR. KOCKX: With respect to the s. 219 order, I am prepared to draft it. I'm not sure if you were thinking of just leaving as it is.

Normally the Crown would draft an order. [ 86 ] THE COURT: No, I am simply attaching it so that everybody has the terms, and I welcome you to draft it and I will sign it as soon as it arrives. [ 87 ] MR. KOCKX: And with respect to the time to pay that, of course should apply to the victim levy. [ 88 ] THE COURT: Fine surcharge as well. [ 89 ] MR. KOCKX: Surcharge levy. [ 90 ] THE COURT: Yes. [ 91 ] MR.

KOCKX: I mentioned this briefly to my friend before we started that if Your Honour did impose fines, of course under the Victims of Crime Act, there is the levy that is mandatory, it's 15 percent, and under s. 220 of the Workers Compensation Act, any money that is paid towards the fine must end up in the accident fund. [ 92 ] THE COURT: Yes. [ 93 ] MR.

KOCKX: Normally, as you noted from past decisions, the Crown's always asked that that happen, and I've seen the form that the registry uses to reflect the courts order that the accused pay a fine, the registry then puts out the amount of the fine, the due date, and adds to that the amount of the surcharge and the due date for the surcharge, and it's more or less left up to the registry, once the money comes in, to pay attention to your direction. [ 94 ] I am also prepared to prepare a fine order similar to what the registry uses so it's perfectly clear that when -- that the money be paid to the Clerk of the Court, that's the surcharge and the fine, and that with respect to the fine, that it is to be forwarded to the accident fund.

I have an address as well and I can incorporate that into an order. If that's agreeable with everyone, then I'll simply draft both orders, the s. 219 order and the fine order, forward them to my friend for his approval, and then once he's signed them I'll file them at the registry. [ 95 ] THE COURT: Thank you, I think that is a very good idea, in the circumstances, and we will proceed on that basis. [ 96 ] MR. MACKOFF: Yes, please. [ 97 ] MR. KOCKX: Yes. [ 98 ] THE COURT: Thank you. Thank you all. And I should say formally, these cases, for a variety of reasons, are difficult.

Counsel's very careful presentations here made that work much easier, and so I am indebted to both counsel for that. [ 99 ] MR. KOCKX: Thank you. [ 100 ] MR. MACKOFF: Thank you very much, Your Honour. [ 101 ] THE CLERK: Is there any stays on that [indiscernible] [ 102 ] MR. KOCKX: I'll stay -- direct stays on the remaining counts and accused. (REASONS FOR SENTENCE CONCLUDED)