R v Inland Machining Services Ltd., 2023 ABCJ 224

In the Alberta Court of Justice Citation: R v Inland Machining Services Ltd., 2023 ABCJ 224 Date: 20231026 Docket: 210704078P1 Registry: Calgary Between: His Majesty the King - and - Inland Machining Services Ltd. Accused Sentencing Decision of the Honourable Justice H.A. Lamoureux Background [ 1 ] On June 14 th , 2023 Inland Machine Services (IMS) was convicted on counts 1, 9, 10, 11, 12, 24, 27, 28, 29, 30, 31, 32 and 33 on the Information before the Court. The convictions are pursuant to the Occupational Health and Safety Act , S.A. 2017 c.O.-2.1 (The Act ), the Occupational Health and Safety Regulation and the Occupational Health and Safety Code. The Court agrees with the facts

summary outlined by the Crown in its written submissions at paragraph 2. “If IMS had installed and maintained the physical safeguards on the European Lion lathe (the Lion lathe) and had reasonable administrative procedures in place to reduce the risk of the lathe operator coming into contact with the Lion lathe’s moving parts while operating it, he would have been protected to the extent that he would not have suffered fatal injuries in the incident of August 16, 2019”. [ 2 ] There is no disagreement between the Crown and Defence as to the relevant caselaw that must be applied by the Court with respect to sentencing, a corporate defendant in a public welfare regulatory case. “ The Occupational Health and Safety Act is part of a large family of statutes creating what are known as public welfare offences...

In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all. To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute.

Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence.” R v Cotton Felts , 1982 Carswell Ont 1235 at paragraph 19 [ 3 ] The Court agrees that the sentencing principle of deterrence in Occupational Health and Safety litigation has both a negative and positive connotation.

The Court agrees with the Crown’s submission at paragraph 7 of it’s written brief: “Deterrence has both a negative and a positive connotation: it achieves compliance by threat of punishment and has an educative effect by emphasizing community disapproval of the act.” [ 4 ] In addition to the paramount consideration in sentencing for offences of this type, deterrence; the Court is also bound to approach sentencing of a corporation with the principled approach outlined in the decision of R v General Scrap Iron & Metals Ltd. , 2003 ABQB 22 at paragraph 35 : “Nevertheless, there must be a principled approach to sentencing corporate offenders for regulatory offences.

It is axiomatic that an unguided approach would offer no guide to corporate behaviour, as sanctions would be seen as random, even arbitrary or capricious. I conclude, then that the appropriate approach for sentencing corporations should be to evaluate three aspects of the matter: (1) the conduct, circumstances and consequences of the offence, (2) the terms and aims of the relevant enactment or regulation, considered in the larger context of comparable regulation and legitimate

corporate functioning in the relevant areas, and (3) the participation, character and attitude of the corporation offender, considered in the larger context of corporations engaged in relevant industrial or business activity as to aspect (1), in a process which identifies the aggravating and mitigating factors so as to allow rational comparison between cases, and to allow for reasonable expression of why one set of aspects deserves a more or less severe sanction than another.” [ 5 ] The Court also agrees with Crown’s submissions in paragraph 14 of it’s written brief when it refers to R v Independent Automatic Sprinkler Ltd , 2009 ABQB 264 in which it is recognized that the purpose of the Occupational Health and Safety Act is to protect the worker in the workplace.

Death and serious and permanent injury will attract heavy fines. R v Independent Automatic Sprinkler Ltd , (supra). R v Tech-Corrosion Services Ltd , 1986 CarswellAlta 19 . [ 6 ] In addressing the principle of deterrence the Court must apply the factors outlined by the learned Justice in R v Rose’s Well Services Ltd. ,

(2009) ABQB 266 citing R v Fiesta Party Rentals

(1984) Ltd , 2001 CarswellAlta 1817 .

The Court agrees with the Crown in its written submissions at paragraph 16 as to the particular factors to be considered: (1) any special circumstances of the victim; (2) the intent or degree of negligence involved; (3) the extent of the accused’s attempts to comply with the legislation; (4) the element of risk involved in the activity; (5) the remorse of the accused; (6) the record of the accused; (7) the extent of the harm; (8) the economic impact upon the accused’s business; (9) the size of the company involved; (10) the scope of the economic activity in issue; and (11) the maximum penalty prescribed by statute. [ 7 ] The Court proposes to deal with each factor: Special circumstances of the victim: Mr.

Ubhi is deceased. The Victim Impact statement filed by his widow entered as Exhibit 1 in sentencing confirms that Mr. Ubhi death has had a devastating impact upon his family, his wife and children. In particular, Mr. Ubhi’s wife advises the Court that she relied on her husband for everything as Mr. Ubhi was fluent in English and she is not. The widow is now forced to rely on her children in order to carryout everyday activities paying bills, attending to paying taxes, making appointments, going to work and driving. Mrs.

Ubhi has suffered the loss of her husband’s income which has caused an economic impact on the family. The intent and degree of negligence involved: The Crown submits there a high level of culpability for the corporate defendant. The Crown cites that the Lion lathe is inherently dangerous machinery. In this case the corporate defendant did not undertake any engineering studies prior to the accident, did not have reasonable engineering controls, did not have any reasonable administrative controls to reduce the risk of death to the worker. The extent of the accused’s attempts to comply with the legislation.

The accused counsel submits that no one in the industry is using trip wires as safeguards on the manual lathe. The defendant’s counsel submits that the SAIT Machinist instruction program does not equip its lathes, with safety guards such as trip wires. The Defence submits that the installation of safeguards such as trip wires is not objectively reasonable. The court in its findings on liability has found that before this accident the defendants made no attempt to install any reasonable engineering controls or administrative controls in order to protect the worker from foreseeable hazards.

The element of risk involved in the activity: The Court accepts the Crown’s submissions that the manual lathe is inherently dangerous machinery. The element of risk to workers engaged in the activity of operating the manual lathe is high. Death can occur instantaneously.

The remorse of the accused: The Court has heard extensive viva voce evidence from the corporate officer throughout the course of the Trial. The corporate officersare genuinely remorseful at the loss of Mr. Ubhi. However the Court concludes that the corporate entity has no insight into its role in thedeath of it’s worker, Mr. Ubhi. Defence submits that his client, the defendant was entitled to rely on the skill of the employee. Defencecounsel submits that the death is not a case of lack of training. Defence counsel submits that this is not a case of “patent or obviouserror”.

The defendant counsel submits that “there is no callous disregard”. The Court rejects these submissions. [8] The employer is not entitled to raise a defence of the level of skill of an employee to reduce it’s statutory obligations toprovide employees with a safe work place and proper equipment. The employer is required to take steps to ensure that employees haveproper training to operate inherently dangerous machinery. The chief corporate officer of the defendant has testified at the sentencinghearing. Mr. Reid prepared a formal statement of remorse (Exhibit 3). Mr. Reid testifies that after the death of Mr.

Ubhi, it created, withexpert third party advice and assistance, a workplace manual for employees. Mr. Reid informs the Court that since the death of Mr. Ubhithe manual lathe, sits unused in his company. Mr. Reid explains that “we have not chased manual lathe work at all since the accident”.Mr. Reid testifies that “most machinists are CNC trained now”. Mr. Reid also informs the Court that the company also trains machinistapprentices who are students at SAIT. Finally, Mr.

Reed says in his evidence in the sentencing hearing that “our shop is run like everyother shop”. [9] The Court does not accept the statements contained in paragraphs 4, 5, 8, of Exhibit 3 They are purporting to address issueswhich have already been determined at Trial. The record of the accused: The Crown does not allege a previous record relevant to these proceedings. The extent of the harm: The harm is the ultimate that can be sustained, the death of the worker. The economic impact on the accused: The corporate defendant does not present any economic evidence to the Court. In his testimony at the sentencing Mr.

Reid says that hiscompany is “mid to larger size”. He informs the Court that he has 25 employees. The statements made by Mr. Reid in paragraphs 9 and10 of Exhibit 3 are not supported by any evidence provided by the defendants. In any event, the Court agrees with Crown’s submissionsat paragraph 21 and 22 of the Crown’s written brief. While financial status may be relevant (upon presentation of proper evidence) theinability to pay cannot reduce what is otherwise a fit sentence. R v Fiesta Party Rentals

(1984) Ltd, 2001 CarswellAlta 1817 atparagraph 26. The question of the ability to pay the fine which is a relevant factor in sentencing under the Criminal Code does not applyto a corporation where fines are the primary if not the only means of sanction R v General Scrap Metal Iron & Metals Ltd, 2003 ABQB22 at paragraph 100-102. In essence, the corporation’s ability to pay a fine under the Act cannot be a justification for reducing the finewhich is otherwise a fit sentence R v General Scrap Metal Iron & Metals Ltd (supra). [10] Considerations of the principle in R. v Kineapple, (1975) (SCC), 1 SCR 729. [11] The Court accepts the submissions of the Crown as contained in

Part 3 of their written submissions, in particular paragraphs26-30 inclusive. The Kineapple principle does apply in this case. The Court agrees with the Crown’s submissions. A conviction shouldbe entered for the more serious charge and a conditional stay entered on the lesser charge. The general duty charge in count 1 is the mostserious of the charges in this case. The Kineapple principles do not apply with respect to counts 1, 24, 28, 29 and 30. Kineappleprinciples do apply to counts 9, 10, 11, 12, 27, 31, 32 and 33. The Court directs a conditional Stay to be entered for counts 9, 10, 11, 12,27, 31, 32 and 33.

Count 1 the General Duty Offence: [12] The Crown seeks a fine in the range of $300,000 to $350,000 plus the Victim Fine surcharge at 20%. To support that positionthe Crown refers R v Alpine Paving & Contracting Ltd, 2018 ABPC (unreported) and other decisions reflected and discussed atparagpraph 36 to 51 of the Crown’s written submissions. The Court determines that there are no mitigating factors in this case whichwould reduce the quantum of the fine. The actions of the corporate accused made after the death of Mr. Uhbi should have beenimplemented prior to the events in this case.

They are not mitigating in the sentencing process. [13] The corporate defendant submits that it is being held to a standard of perfection not imposed on any other machine shop in theprovince. (Exhibit 3 in sentencing) The corporate defendant submits that the institutions which train machinists, SAIT and NAIT, do notuse trip wires on their manual lathes (Exhibit 3 in sentencing). The corporate defendant says that trip wires on the manual lathes wouldhave “further endangered any operator of a lathe”.

The corporate defendant submits to the Court that all other machine shops operate inthe same manner that it did prior to the accident with respect to administrative controls and engineering controls. The Court has foundthat the practice of operating the machine shop without any administrative controls, without proper work attire for workers, and withoutthird party engineering reviews of the safety of the workplace, is a breach of the statutory obligation of the employer under the Act. It isirrelevant as to what other machine shops may or may not be doing.

There was no evidence before the Court on this issue at Trial. TheCourt imposes on count 1 a fine in the amount of $325,000 plus the victim fine surcharge at 20%. [14] The Court hears submissions of the Crown and Defence with respect to the specific duty offences remaining after application

of the principles in R v Kineapple (supra). The Crown seeks a fine of $20,000 on count 24, a fine of $15,000 on count 28, a fine of $15,000 on count 29 a fine of $15,000 on count 30 plus the Victim Fine surcharge for each count, consecutively. The Crown properly submits that in recognition of the totality principle and the principle of proportionality and restraint in sentencing the total fine on all counts should be $325, 000 to $375,000 plus the Victim Fine surcharge. The Court concludes that the Crown’s analysis is fair and in recognition of the primary sentencing principle of deterrence.

The Court imposes a total fine on counts 1, 24, 28, 29 and 30, on a global basis, in the sum of $350,000 plus the Victim Fine surcharge at 20%. Heard on October 26, 2023 Dated at Calgary , Alberta this 26th day of October 2023. H.A. Lamoureux A Justice of the Alberta Court of Justice Appearances: H. Kruger for the Crown and C. M. Smith for the Accused