R. v. R.D. Longard Services Limited, 2015 NSPC 35

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. R.D. Longard Services Limited , 2015 NSPC 35 Date: June 12, 2015 Docket: 2690136 and 2690137 Registry: Halifax Between: Her Majesty the Queen v. R.D. Longard Services Limited SENTENCING DECISION Judge: The Honourable Judge Anne S. Derrick Heard: May 26, 2015 Decision: June 12, 2015 Charges: section 74(1) of the Occupational Health and Safety Act, R.S.N.S. 1996, C. 7 x 2 Counsel: Peter J. Craig, for the Crown Robert C. Hagell, for the Defendant By the Court: Introduction [ 1 ] On May 21, 2013, Chris Boyle, a journeyman electrician employed by R.D.

Longard Services Ltd. went to work as usual. He never made it home. [ 2 ] Mr. Boyle’s fatal electrocution on May 21, 2013 led to R.D. Longard Services Ltd. (“Longard”) being charged with two offences under the Occupational Health and Safety Act . On April 17, 2015 I convicted Longard for: • Failing, pursuant to section 13(1)(

c) of the OHSA to take "every precaution reasonable in the circumstances to provide such information, instruction, or supervision" as necessary to the health and safety of Mr. Boyle; and • Failing, pursuant to subsection 120 of the OHSA General Regulations "to ensure that an electrical installation was serviced, repaired or dismantled in accordance with the latest version of CSA standard CSA C22.1, 'Canadian Electrical Code

Part 1', Safety Standard for Electrical Installations". [ 3 ] My trial decision is reported at R. v. R.D. Longard Services Ltd ., [2015] N.S.J. No. 169 (“Trial Decision”) . This is my decision on sentencing. Facts [ 4 ] On May 21, 2013, Mr. Boyle was tying down an electrical feeder cable for a new electrical service at 201 Chain Lake Drive. This involved working on a meter cabinet with an operating voltage of 600 volts. The “scope of work” contemplated that the sub-contracted electrical work could be done after hours when the strip-mall tenants would be unaffected by a power shut-down. It is not known why Mr.

Boyle worked on the system while it was energized. [ 5 ] The evidence at trial established unequivocally that Mr. Boyle was “a very experienced, highly regarded, fully-qualified electrician who was known to be safety conscious and attentive to safety issues.” ( Trial Decision, paragraph 38 ) I found that Mr. Boyle “cannot have been unaware of the danger and must have thought he could do the work without coming into contact with the energized bus bars”,

making “a tragic, fatal miscalculation.” (Trial Decision, paragraph 47) [6] I concluded that the Mr. Boyle’s decision to work on the energized system did not absolve Longard of responsibility for itsobligations under the Internal Responsibility system of the OHSA. (paragraph 48) In convicting Longard, I found that the companyfailed to institute any policies or practices that addressed workplace safety and relied exclusively on Chris Boyle being an experiencedand safety-conscious electrician. I also found that Longard did nothing to ensure compliance with the Canadian Electrical Code otherthan rely on Mr.

Boyle to work safely and in accordance with the relevant legislative requirements for electrical jobs. (Trial Decision,paragraphs 52 and 59) The Positions of the Crown and Defence on Sentence [7] Mr. Craig’s opening position on behalf of the Crown was a global monetary penalty in the $75,000 range, consisting of a fineand/or donation, and the imposition on Longard, pursuant to

section 75 of the OHSA, of a sanction in the form of a creative sentencingoption. [8] Mr. Hagell for Longard submitted that Longard is no longer a functioning company and has no funds. In support of this submissionLongard provided unaudited financial statements that indicate total liabilities and equity of $15,872.03 to the end of May 2015 and anegative net income for the past 12 months of $2,900. The company’s total liabilities at the end of May 2015 were $193,817.96. [9] In the course of the sentencing hearing Mr.

Craig acknowledged that Longard’s financial realities were a relevant consideration onsentencing and submitted, in effect, that if the monetary sanction was reduced, the creative sentencing aspect should be amplified. The Victim Impact Statements [10] Chris Boyle was 39 years old when he died. He left behind a shattered family. He was deeply loved by his wife, Tanya, their twoyoung children, now six and four, his parents, and an extended family. Victim Impact Statements were submitted by Tanya Boyle; Patand Harry Boyle, Mr.

Boyle’s parents; Scott Boyle, his brother; Linda and Cecil Mitchell, his in-laws; and three of his sisters-in-law –Kimberley Clarke, and Heather and Katie Mitchell. Ms. Boyle showed great fortitude in reading all these Victim Impact Statements intothe record. [11] The Victim Impact Statements bring Mr. Boyle’s stellar character to life. Tanya Boyle described her husband as “a man ofintegrity, strength, honor and heart.” He was always committed to the well-being of others. In the context of work, Ms. Boyle said: “Hismain goal on a daily basis was to ensure the protection of those around him.

He was always there for anyone who needed him…” Athome he was a devoted and loving husband and father. His little family is heart-broken, facing their futures without Mr. Boyle’s strong,supportive presence. In Tanya Boyle’s words: “…I wish I was exaggerating when I tell you that every night, Megan cries for him.

Jennacannot understand why all the kids in Grade Primary have a Daddy and she doesn’t…We are working on their sadness and anxiety everyday, but they still think he’s at work and eventually will come home one of these days.” [12] It is a testament to Tanya Boyle’s strength and courage that in her Victim Impact Statement she focused on two principal themes –the pain being suffered by her daughters and the importance of workplace safety. She concludes her Statement by saying: Workplace safety is a combined effort of all employees, management and owners.

I will certainly be an advocate and do all that I can toaddress, support, and lecture about the importance of workplace safety. I will do everything in my power to ensure that workers comehome to their families and that families never have to deal with the anguish of identifying the body of a loved one. [13] These words contain the echo of what Mr. Boyle was known for – concern for others and a commitment to ensuring co-workerswere aware of and protected from hazards. [14] Mr. Boyle has been memorialized in the Victim Impact Statements of his parents and older brother, Scott. Mr.

Boyle’s parents paidtribute to his capacity for bringing “joy, laughter, and kindness” into the lives of his family and all those who knew him. And while alsospeaking of their excruciating loss and that of their granddaughters and Ms. Boyle, Pat and Harry Boyle expressed a heartfelt plea forworkplace safety.

Scott Boyle described his younger brother as “a Hero in my eyes” and “the one guy I could count on for anythinganytime…” The family’s feelings of raw loss and grief are palpable and heart-rending. [15] Tanya Boyle’s family - her parents and sisters – shared through their Victim Impact Statements the heartbreak of Chris Boyle’sdeath. Their statements are vivid reminders of the tragic reach of a workplace fatality and emphasize how profoundly Mr. Boyle touchedthe lives of the people who knew him best. Described as “special, fun loving and heroic”, Mr.

Boyle’s death has, in the words of one ofTanya Boyle’s sisters, left “a hole in many people’s hearts.” The Legal Framework for Sentencing OHSA Violations [16] In my decision Nova Scotia (Department of Environment and Labour) v. Nova Scotia Power, Inc., 2008 NSPC 72 , [2008]N.S.J. No. 531, I described the legal framework and governing principles for sentencing OHSA violations: 27 The legal framework for this sentencing has been constructed by the purpose and principles of sentencing found in sections718-718.2 of the Criminal Code (which apply here by operation of the

Summary Proceedings Act, S.N.S. 1989, c. 450 as amended) andthe occupational health and safety cases applying these norms. Norman A. Keith's treatise, "Canadian Health and Safety Law: AComprehensive Guide to Statutes, Policies and Case Law" (Canada Law Book: 2008) references principles of sentencing foroccupational health and safety violations that reflect those found in sections 718 -718.2 of the Criminal Code: There are three primary objectives of sentencing for a violation of the applicable health and safety legislation.

First, there is thedeterrence aspect of the sentencing process, both specific to the convicted party and generally for the community. Secondly, there is theretribution aspect of the sentencing process, indicating the moral wrong and the need to reinforce the value or standard that was violated.Thirdly, there is the rehabilitation-reform aspect of the sentencing process for the convicted party to be assisted in not repeating the

offence. 28 In Regina v. Cotton Felts Ltd., (ON CA), [1982] O.J. No. 178, the Ontario Court of Appeal held that: The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of theeconomic activity in issue, the extent of the 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 ... 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 a mere licence fee forillegal activity. (paragraphs 19 & 22) 29 The Cotton Felts decision accorded deterrence in the occupational health and safety context a broad meaning encompassing anemphasis on community denunciation and stigmatization of

an act with the result being a moral or educative effect that conditions theattitude of the public. In approving this model of deterrence taken from R. v. Roussy, [1977] O.J. No. 1208 (Ont.

C.A.), Blair, J.A. inCotton Felts held that deterrence with an educative dimension is "particularly applicable to public welfare offences where it is essentialfor the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect thephysical, economic and social welfare of the public." (paragraph 23) 30 A sentence for an occupational health and safety infraction must communicate a message that emphasizes the essentialresponsibility of ensuring "corporate good conduct and [enhancing] the well being of the public." (R. v.

General Scrap Iron and MetalsLtd., 2003 ABQB 22 , [2003] A.J. No. 13 (Alta.

Q.B.) paragraphs 28-30) Watson, J. in General Scrap Iron concluded thatsentencing corporations for regulatory offences should be approached with the following in mind: (1) the conduct, circumstances and consequences of the offence; (2) the terms and aims of the relevant legislation; (3) the participation, character and attitude of the corporation offender. (General Scrap Iron, paragraph 35) 31 Watson, J. articulated an analytical framework constructed around these considerations, noting that aggravating and mitigatingfactors must be factored into the sentencing of the corporate offender. (General Scrap Iron, supra, paragraph 49) This framework isdetailed in R. v.

Meridian Construction Inc., [2005] N.S.J. No. 379, a decision of the Honourable Judge Alan Tufts of this Court. InMeridian, Judge Tufts makes several noteworthy observations about sentencing in the occupational health and safety context: ... the fundamental purpose of sentencing is the protection of the public and a respect for the law ... The workplace is an inherentlydangerous environment ... Workers have little power or leverage individually to control safety measures which are necessary to protectthem and minimize their risk of injury.

They can only collectively bargain or rely on the legislative scheme such as the OccupationalHealth and Safety Act to protect them.

The Occupational Health and Safety Act has as its principle purpose ... the protection of workers.The foundation of the Act is the internal responsibility system ... which is based on the principle that workplace safety is a sharedresponsibility ... (paragraph 13) 32 In Meridian, Judge Tufts also noted that workplace safety risks can readily go undetected in a context that is "largely self-policing."(paragraph 15) Sentencing of a corporate offender in an occupational health and safety case is an exercise in balancing a number offactors to achieve a disposition that helps protect workers through deterrence and emphasizes respect for workplace safety and thelegislative scheme that embodies this objective.

Sentencing Options under the Occupational Health and Safety Act [17] Penalties under the OHSA against corporations typically involve a fine pursuant to section 74(1) and what are often referred to as“creative sentencing options”, made possible by

section 75.

The “creative sentencing options” can include: directing the offender topublish, in the manner prescribed, the facts relating to the offence (s. 75(1)(a); directing the offender to pay the Minister an amount forthe purpose of public education (s. 75(1)(b); community service (s. 75(1)(d)); and requiring the offender to comply with such otherreasonable conditions as the court considers appropriate and just in the circumstances with the objective of securing the offender's goodconduct and preventing a repetition of the same offence or the commission of other offences (s. 75(1)(f)). [18] Where “the offence resulted in a fatality”, the maximum amount of the fine is five hundred thousand dollars. [19] In his submissions in relation to the “creative sentencing option”, Mr.

Craig sounded a note of caution by saying that “duereflection” must be given to “the practical viability of meaningful compliance.” He submitted that any “creative sentencing option” mustbe structured in a meaningful fashion and undertaken by a motivated offender acting in good faith. Here that motivated offender acting ingood faith is a corporation. No individual was charged in this case. I agree with Mr.

Craig that presentations on safe electrical work as a“creative sentencing option” in this case should include details about the factual circumstances, the relevant statutory requirements, andthe required due diligence.

[20] An important message to employers would be that solely relying on a worker’s experience and safety-consciousness is not enoughto constitute compliance with occupational health and safety obligations under the legislation’s Internal Responsibility system. The Fundamental Sentencing Principle of Proportionality [21] The penalties provided for under the OHSA will never seem proportionate to the loss suffered by the family of a worker who hasdied on the job. There is no monetary value that can be placed on a cherished life. Campbell, P.C.J. (as he then was) reflected on this inR. v.

New Glasgow (Town), [2008] N.S.J. No. 123 where he said: 53 There is something discomforting about the discussion of dollar amounts when it happens in the context of a person's death. Itcould be properly said of any amount, that it does not come close to being enough. It does not measure the grief of a family and of acommunity… [22] Proportionality, a fundamental principle of sentencing, is not a measure of the loss suffered by a grieving family. It requires thatthe degree of punishment reflect the gravity of the offence and the moral blameworthiness of the offender.

It maintains society’sconfidence in the law and the fairness and rationality of the legal system. [23] In an OHSA fatality case, the connection between the safety infraction or infractions and the worker’s death is relevant in fixing thepenalty. This is reflected in numerous OHSA sentencing decisions from this jurisdiction and other provinces. For example, Campbell,P.C.J. held in New Glasgow (Town): 41 The Town had in place safety policies that were inadequate. There was a lack of diligence in dealing with the issue.

The lack ofproper policies and the lack of a culture that promoted workplace safety directly contributed to this incident. There may be situationswhere accidents take place and perhaps, had the proper procedures been used, they would not have. Here, there is more than a mereprobability, that had the appropriate legally required processes been used, this would not have happened. (emphasis added) [24] A similar reference to proportionality is found in R. v. Sage Well Services Ltd., 2000 SKQB 259 , [2000] S.J.

No. 448,where Baynton, J. of the Saskatchewan Court of Queen’s Bench said: It would be a clear error and a demonstrably unfit sentence if the respondents had been sentenced on the basis of sentences imposed onlarge corporations in Ontario or Regina rather than on the basis of the facts of this case, the nature of these respondents and the degree oftheir culpability. (emphasis added) [25] And in Meridian Construction Inc., Tufts, P.C.J. discussed the application of proportionality: Proportionality: Clearly the gravity of these offences are significant. They resulted, as this Court found, in the death of Mr.

Dillman. Theimpact of these violations are serious.

The Court listed four specific areas where each defendant failed to act which could have preventedthis tragedy…Here the failure of the defendant to insist upon regular toolbox meetings with CMC and the failure to adequately inspectthe skylight openings after January 22, 2003, when the issue was brought to the defendant's attention, are the most serious failures of thedefendant; although as the Court held earlier the other failures also contributed to the accident and could have prevented it. (paragraph16) [26] As Watson, J. held in General Scrap Metal, the sentencing of corporate offenders has to be "sensitive to the facts andcircumstances" of the case.

"When the law speaks to corporations through sanctions, it should do so in a manner which is logicallycoherent with the factual level of culpability of the corporation." (General Scrap Metal, paragraph 44) Proportionality and the Nexus between Longard’s OHSA Violations and the Workplace Fatality [27] The degree of moral culpability for a workplace death that occurs in the context of OHSA violations will vary according to the factsof the case. In some cases but for the breaching of legislated safety obligations, the worker would not have died.

In other cases, the roleof the breach will be less direct or less clear or will not have been the exclusive cause of the death. Culpability for breachingoccupational health and safety legislation can arise even where there is no “causal link” between the breach and the workplace fatality.(R. v. Ontario (Ministry of Labour) v. Cousins Packaging Inc., [2006] O.J. No. 2911 (C.J.), paragraphs 16 and 25) As I held inconvicting R. D.

Longard Services Ltd: 46 Just because the evidence does not establish that what an employer failed to do was the cause of the employee's injuries or deathdoes not mean the employer has been compliant with its occupational health and safety obligations. My task does not involve adetermination of whether Longard's workplace safety practices were so deficient that Chris Boyle died as a result.

What I must decide iswhether the Crown has proven beyond a reasonable doubt that Longard took every reasonable precaution to ensure its employees workedsafely, that it did what a "reasonably prudent" employer would have done. [28] I found that although Longard took certain safety-related steps – paying Mr. Boyle to attend the Nova Scotia Construction SafetyAssociation courses and paying for the courses, designating Mr. Boyle the safety officer for the company, a supervisory position, taskingMr. Boyle to prepare a safety manual for the company (which never materialized while Mr.

Boyle was alive), and obtaining HazardAssessment Forms from the NSCSA (which I note, were not used at the Chain Lake Drive job site) - it was not enough to satisfy itsobligations under the Internal Responsibility system of the OHSA. (Trial Decision, paragraphs 43, 44 and 52) [29] Longard was convicted because it had no safety program or policies in place at the time of Mr. Boyle’s death and provided noformal safety training for its employees. It “actually did nothing at all or did nothing that remotely satisfied” the requirements of thelegislation, having taken “a completely hands-off approach to Mr.

Boyle’s work.” (Trial Decision, paragraph 48) That hands-offapproach and exclusive reliance on Mr. Boyle was also how Longard dealt with the requirements of the Canadian Electrical Code. (TrialDecision, paragraph 59)

[30] I found Longard liable for failing to comply with the requirements of the OHSA even in the absence of evidence that established adirect connection between its violation of the Act and Mr. Boyle’s electrocution. This is not a case, like Meridian, of a specific hazardconstituting an “accident-waiting-to-happen”. (Meridian, paragraph 19) It is a case where an absence of formalized safety policies andpractices created unsafe conditions for Longard employees, including Mr. Boyle. [31] As stated in my reasons for conviction, Mr.

Boyle’s decision on May 21, 2013 to work on the live electrical system remainsinexplicable. (Trial Decision, paragraph 38) It cannot be stated categorically that Mr. Boyle’s death would have been prevented hadthere been a robust safety regime at Longard. To use the Meridian case as a helpful example, this is not a situation where properinspection and repair of a skylight opening at a construction site would have certainly prevented a worker falling to his death. That beingsaid, the odds of Mr.

Boyle being electrocuted would have been reduced by the existence of “information, instruction, or supervision”and company safety policies directed at compliance with the Canadian Electrical Code. [32] While the nexus between the actual harm and the OHSA violations is relevant to the assessment of the proportionate sanction, thepotential for harm is also a relevant consideration.

In Cotton Felts, the relevant factors for fixing the amount of a fine imposed oncorporations for occupational health and safety violations were held to include: …the size of the company involved, the scope of the economic activity in issue, the extent of the 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 regulatorystandards by deterrence. (page 8) (emphasis added) [33] The “potential for harm” factor was identified by Warner, J. in R. v.

Nova Scotia (Minister of Transportation and Public Works),[2003] N.S.J. No. 558 as a relevant sentencing consideration in an occupational health and safety case. (paragraphs 29 and 53) [34] The Nova Scotia (Minister of Transportation and Public Works) case involved a successful Crown appeal of a sentence imposedfor a failure to comply with a provision of the OHSA. Warner, J. held that the sentencing judge had failed to consider three of the fourfactors identified in Cotton Felts as relevant to sentencing a corporate offender.

Included in his reasons was a finding that the sentencingjudge’s determination that the employee has contributed to the accident, “…distracted from the purposes of sentencing for a violation ofthe Occupational Health and Safety Act, which Statute is designed to set standards for the safety of workplaces.” (paragraph 29) [35] I was unable to say, from the evidence at trial, that Longard’s lack of safety policies and programs directly led to Mr. Boyle’sdeath. I did find as a fact however that it was Mr.

Boyle who ensured no one, other than himself, was exposed to dangerous conditions inthe workplace and specifically that on May 21, 2013, it was Mr. Boyle, not any “information, instruction, or supervision” by hisemployer, Longard, who prevented his co-workers on the 201 Chain Lake Drive job being exposed to the risk of injury. As I said: …although it is inexplicable that Mr. Boyle did not de-energize the 201 Chain Lake Drive electrical system before working on it, whichcould have been accomplished by doing the job outside of mall business hours, on May 21 he didn't involve Mr. Matthews or Mr.

Francisin the work on the cable at the back of the electrical cabinet and took the risk himself…(Trial Decision, paragraph 47) [36] This further illustrates that it was Mr. Boyle who ensured worker-safety at Longard job sites, the company having instituted nopolicies or practices to comply with its obligations under the Internal Responsibility System of the OHSA. The absence of “information,instruction and supervision” devoted to safety on electrical jobs and the lack of compliance with the Canadian Electrical Code created ahigh potential for harm.

As I held in the Nova Scotia Power case: “If the occupational health and safety regime is going to achieve itsobjective to make workplaces safer, then penalizing potential harm is important.” (paragraph 44) The Circumstances of the Offending Corporation [37] In May 2013, R.D. Longard Services Ltd. was a very small electrical services company. In addition to Mr. Boyle, there were twoother employees. Randy Longard, the current President of the company, also worked on certain jobs. In his submissions on sentence, Mr.Hagell indicated that Mr. Longard brought in the contracts and Mr.

Boyle was the primary employee doing the work. [38] Longard is no longer in operation. Mr. Hagell explained that Mr. Boyle was essential to the company and that without him, it wasunable to continue in business. It is now insolvent. I was told Randy Longard lost a friend when Mr. Boyle died as well as his business. [39] A company’s financial circumstances are relevant to the sentence calculus. Some of the cases provided to me discuss balancing theemphasis on deterrence and the corporate defendant’s continued viability. For example, in R. v. Pederson, 2000 SKQB 255 ,[2000] S.J.

No. 401, a decision of the Saskatchewan Court of Queen’s Bench, Krueger, J. held that a fine for breaching occupationalhealth and safety requirements “…must be large enough to operate as a deterrent but not so significant as to discourage continuedoperation of the business.” (paragraph 17) Continued operation is not a factor relevant to sentencing Longard. [40] Only one of the cases supplied for this sentencing dealt with a company that had ceased to operate.

In an oral decision, theHonourable Judge Claudine MacDonald, dealing with a sole proprietorship, spoke of being “very mindful here of the situation with thecompany now being defunct”. She regarded ability to pay to be “an important factor” on sentencing. (R. v. Charlie MacIntyreContracting, unreported decision of the Provincial Court of Nova Scotia dated October 28, 2003, paragraphs 15 and 16) JudgeMacDonald indicated her awareness of “the need for deterrence, in particular general deterrence” stating that “there still has to be apenalty significant enough…to act as a deterrent.” (paragraph 15) Sentencing R.D.

Longard Services Ltd. [41] I have concluded that the $75,000 fine proposed by the Crown does not take into account Longard’s financial circumstances. Iaccept Mr. Hagell’s submissions about the company’s financial situation. It is relevant that I have no evidence the company did anythingto circumvent a financial penalty under the OHSA. There is no evidence the company deliberately rendered itself into a disadvantagedfinancial position to evade potential consequences and frustrate the objectives of the legislation.

Evidence of that nature would have to betaken into account in fixing the penalty in a workplace fatality case.

[ 42 ] I also note there is no evidence that Longard has a prior OHSA violations. The evidence at trial established that Longard was in the process of developing a safety program for the company. The evidence did not indicate that Longard was indifferent about worker safety. ( Trial Decision, paragraph 37 ) [ 43 ] Longard’s sentence must however emphasize deterrence although this is a case where a “creative sentencing option” component could also serve the objectives of sentencing. Chris Boyle’s commitment to workplace safety was a vivid feature of the facts in this case.

It is a concern that lives on in the values expressed by Tanya Boyle in her Victim Impact Statement. It is a message that can be effectively carried to employers through Longard’s sentence. [ 44 ] I have found it difficult to assess the appropriate amount of a fine in the circumstances of an insolvent corporate offender. What would not be a significant amount to a prosperous company will be significant in circumstances where there is no current ability to pay. I have concluded that while I must take Longard’s financial situation into account, it is not appropriate to weight it too heavily.

The company still exists and has not surrendered its certificate of registration. The sentencing imperative of deterrence must be accorded prominence. I will reiterate that the fine amount does not represent, and is not intended to represent, the incalculable value of Mr. Boyle’s life. [ 45 ] Cotton Felts held that the “scope of the economic activity” of the corporate defendant is a relevant sentencing consideration. Longard has no economic activity. It is a non-functioning corporate entity. Even when operating it was on a small-scale with only three employees and Mr.

Longard. [ 46 ] I am imposing a fine of $35,000 with a Victim Surcharge of $5250. I will hear counsel on the issue of time to pay. In determining the fine amount I have taken into account the size of R.D. Longard Services Ltd., the scope of its economic activity, including currently, a factor which is related to ability to pay, the extent of the actual and potential harm and Longard’s moral culpability for it, and the Crown’s position on quantum.

The Defence did not make a specific recommendation on quantum. [ 47 ] The facts of this case lend themselves to the imposition of a “creative sentencing option” pursuant to

section 75 of the OHSA . Mr. Boyle’s tragic death and the lack of formal safety policies at Longard constitute a sobering message for other small businesses in the construction trades. Often the “creative sentencing option” in occupational health and safety cases involves presentations, as evidenced in many of the sentence orders Mr. Craig provided with his written submissions. [ 48 ] This is a case where the convictions under the OHSA that trigger the sentencing provisions of the legislation are convictions against a corporate defendant only.

In these circumstances a sentence order imposing an obligation to make presentations is a sentence order imposed on the company. [ 49 ] As part of Longard’s sentence, I am imposing, under

section 75 of the OHSA , a community service order on R.D. Longard Services, Ltd. requiring the company to make a series of presentations on the facts of the case as indicated in my trial decision, the applicable regulatory requirements, the workplace safety issues involved, and the required due diligence. Details about content, venue and dates for the presentations shall be mutually agreed upon by the defendant Longard and the Department of Labour. The presentations shall total 150 hours and be completed by December 12, 2016, eighteen months from now.

The Provincial Court will retain jurisdiction with respect to the implementation of the sentence order and will adjudicate disputes on application by either party. [48] I will hear counsel on whether there should be any status reports to the Court on the implementation of the sentence order.