Her Majesty the Queen - v. -, 2016 SKPC 125

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 125 Date: September 27, 2016 Information: 24453197 Location: Leader _____________________________________________________________________________ Between: Her Majesty the Queen - and - J & D Sewer Services

(1984) Ltd. Appearing: B. Rodgers For the Crown J. Smith For the Accused JUDGMENT B.M. KLAUSE , J [ 1 ] J & D Sewer Services

(1984) Ltd., hereinafter referred to as J & D Sewer Services, is charged that on or about September 8, 2014 at or near the village of Fox Valley, Saskatchewan did: 1. Being an employer, failed to ensure that a worker is trained in all matters that are necessary to protect the health and safety of the worker when the worker begins work at a place of employment as required by Subsection 19(1)(

a) of the Occupational Health and Safety Regulations , 1996 resulting in the deaths of Michael Kenneth Faryna and Jonathan Lawrence Kohn contrary to subsection 3-78(

g) of the Saskatchewan Employment Act .

2. Being an employer, failed to take all practicable steps to prevent exposure of a worker, to an extent that is likely harmful to a worker, to a chemical substance or biological substance that may be hazardous, as required by Subsection 302(2)(

a) of the Occupational Health and Safety Regulations , 1996 resulting in the deaths of Michael Kenneth Faryna and Jonathan Lawrence Kohn contrary to Subsection 3- 78(

g) of the Saskatchewan Employment Act . [ 2 ] The incident occurred September 8, 2014 and the Information was sworn December 11, 2015. Guilty pleas were tendered at Provincial Court in Leader, Saskatchewan on July 27, 2016 and the matter adjourned for decision to September 27, 2016. The Facts [ 3 ] The facts were given by the Crown and the Defence substantially agrees with them. On the date in question, the two young victims of this tragedy were on the first day of their new job with J & D Sewer Services who is a very small, local, drainage clearing company.

The three of them were in Fox Valley, Saskatchewan to do the sort of routine maintenance on village sewer lines that is required of all urban centers, large or small, in Saskatchewan. [ 4 ] The accused corporation is not a large organization and consisted of the young men and their employer, Mr. Dodds. They had been hired by Fox Valley to flush out sewer lines. It was the first day of work for the young men. They were essentially standing around the manhole at the time of the incident having a conversation. Mr.

Faryna went into the manhole, either by slipping or falling then resurfaced as if trying to pull himself out of the manhole. He then apparently collapsed into the manhole. Mr. Kohn, in an effort to save Mr. Faryna, tied a rope around his waist and went closer to the manhole which led to a drain approximately 25 feet deep. He also collapsed and Mr. Dodds tried to save Mr. Kohn by pulling him out or away from the hole. CPR was attempted. Mr. Faryna was still in the hole, apparently submerged in sewage.

There was nothing in the way of breathing apparatus or any safety equipment that might have prevented this tragedy or that would have been available to help save the young men. Both men died as a result of hydrogen sulfide toxicity which is created by the decomposition of organic material. It is also known as sour gas or sewer gas. It is colourless, extremely toxic and in lower concentrations has a rotten egg smell. In higher concentrations, it is lethal. People in the oil and gas industry obtain training in recognizing and addressing the problems associated in working with this lethal gas. Mr.

Dodds did not have any specific training in this area or any protocols for his company. He was unaware if either of the deceased men had any training. Crown Position [ 5 ] The Crown stresses that the Saskatchewan legislation requires training in this area, especially when new employees are commencing this form of employment. In the instant case no training was done and no breathing apparatus was available. The Crown notes that the maximum fine is $1.5 million as the Province of Saskatchewan has increased the fine to promote general deterrence.

The Crown points out that the Accused Corporation has no prior convictions, no prior notices of contravention, that there is no minimum fine and that no two cases are the same.

They further note that J & D Sewer Services is a very small operation, and is no longer doing this form of work but notes that J & D Sewer Services had no equipment to deal with this eventuality and thus this was a situation that was both preventable and tragic which indicates a high degree of culpability. [ 6 ] The Crown notes that in R v Reimer [1] , Judge Morgan imposed a fine of $20,000.00 plus a surcharge for a total fine of $28,000.00. In that case a gas explosion caused by the defendant killed two individuals.

However since that event, the maximum fines have increased. [ 7 ] The Crown suggests that in order to get the message across to companies in this province the Court must look to all the factors including the unimaginable consequences to the two deceased employees and their families and while acknowledging that no fine can equal the value of a human life, seeks fines in the range of $40,000.00 plus surcharges for a total of $56,000.00 Defence Position [ 8 ] The Defence submits that the Mr.

Dodds has and continues to experience real remorse as he knew both the young men; Michael had been dating his daughter and they were planning on welcoming him to their family. He recognizes the need for training in

the area of sulfide gas detection and protection and notes that while he has been in this business for years, he had never received any training in dealing with the gas. He does advise that the primary rule of his business was that no one ever enters a manhole and that he had passed that information on to the two young men. In his business, one opens a manhole and puts down a high pressure water line in order to unblock it. There was no need to enter the manhole and he maintains that he did not order or request either young man to enter the manhole.

In his opinion, the government should require all contractors to have the requisite training in order to prevent this sort of tragedy from reoccurring. Mr. Dodds has been unable to work in this industry since this occurred and it affects him daily and deeply. He suggests that because his ability to pay has been so compromised, that a fine in the amount of $15,000.00 would be more appropriate and he would require time to pay.

The Law [ 9 ] The Crown has supplied the cases of the R v Reimer, supra , and R v Kenneth Pederson Sr. [2] , a decision of the Court of Queens Bench. [ 10 ] Reimer related to the tragic situation in Nipawin, Saskatchewan where two men were killed after the accused struck a gas line, resulting in a tremendous gas explosion which led to the two deaths, significant injuries to the accused and four others, and leveled the butcher shop.

The resulting fire destroyed two adjacent buildings. [ 11 ] In deciding an appropriate sentence to be imposed in the Reimer case, Judge Morgan quoted extensively from the previous decision of Judge Whelan in R v Westfair Foods Ltd , 2005 SKPC 26 at paragraph 38 : (

i) the primary objective of regulatory offences, ... is the protection in the workplace of the employee and the general public. (ii) the sentencing principle which best achieves this objective is deterrence, general deterrence being of paramount consideration. (iii) the factors which I will apply will be as follows: the size of the business, including the number of employees, the number of physical locations, its organizational sophistication, and the extent of its activity in the industry or community. [ 12 ] In Pederson , Mr.

Justice Krueger at paragraph 9 had this to say: The purpose of the Occupational Health and Safety Act , 1993, as I understand it, is to set a minimum standard of working conditions in Saskatchewan. Where workers are subjected to unsafe conditions that result in death or serious bodily injury a substantial fine is imposed as a reminder that working conditions that do not meet the prescribed standard will not be tolerated. The fine under this Act is not , as is the case with some statutes, intended to remove any profit or advantage. It is a penalty for failing to ensure safe working conditions.

The greater the risk of harm from an offence, the more often the offence is committed or the longer it is committed the higher the fine. [ 13 ] At paragraph 13 of his judgment, in referencing the Occupational Health and Safety Act , and in considering the relevant factors in sentencing he stated this: An inexhaustive list of factors to be considered when sentencing under this Act include the magnitude of the venture, the extent of activity, past diligence in complying with or surpassing industry standards, previous offences, degree of responsibility or culpability, expense incurred as a result of the incident, measures taken to prevent re-occurrence and the ability to pay.

Not all factors will apply to every case, but every case must be considered on its own particular facts. [ 14 ] In The Saskatchewan Employment Act , the legislation with which the Court is dealing with today, the penalty

section is set out in s.3-79:

(7) Subject to subsection (9), every person who is guilty of an offence mentioned in

section 3-78 that causes the death of or serious injury to a worker is liable on

summary conviction to a fine not exceeding $500,000. (9) if a corporation is convicted of an offence mentioned in subsection (7), the convicting judge may order the convicted corporation pay a fine not exceeding $1,500,000 if the convicting judge is satisfied that it is appropriate to do so having regard to: (

a) the need to achieve general deterrence (

b) the number of previous convictions (

c) the number of previous notices of contraventions issued to , and the number of previous compliance undertakings entered into by, the convicted corporation; and (

d) the degree of responsibility of the convicted corporation, including considering the number of employees employed by the convicted corporation. Decision and Analysis [ 15 ] Reimer is very similar to the case at bar in that J & D Sewer Services is a very small operation, essentially consisting of Mr. Dodd and the two deceased employees. Since this tragic incident, the corporation which essentially consists of Mr. Dodd has not performed any work in this industry. There is no previous conviction that the Crown is alleging nor is there any suggestion of previous contraventions or compliance undertakings.

I must therefore consider the need to achieve general deterrence and the degree of responsibility of the corporation. [ 16 ] The need for general deterrence is high in this case as this was a wholly preventable incident. The corporation has been involved in this business apparently for years without incident but with the high degree of publicity involved in similar cases, one could assume that this situation would have come to the attention of the corporation.

Secondly, there was no available equipment provided by the corporation which may have helped to either prevent the incident or to help rescue either one of the two workers who were trapped by the hydrogen sulfide gas. [ 17 ] It is completely unclear to me how or why Michael Faryna actually entered the uncapped drain. Was he standing too close to the open drain and the hydrogen sulfide gas was so concentrated that inhaling it caused him to collapse into the manhole or in a burst of youthful enthusiasm at his new job he decided to step into the drain.

We will likely never know exactly how or why he entered the drain. What is clear is that once he did, it was obvious he was in trouble and Jonathan Kohn, recognizing the problem and acting in heroic fashion and without thought to his own life, decided to attempt a rescue. Tragically this ended in both young men dying. [ 18 ] In my opinion, this was a completely foreseeable and preventable situation. It was compounded by the fact that despite Mr.

Dodds’ years of experience in this line of work, that he had never received any training for this possibility nor did he train or apparently inform his new staff of this potentially lethal hazard. In addition, there was no safety equipment either on hand or located close by including a breathing apparatus or other equipment to ensure the safety of his workers. [ 19 ] However, as the defence points out and the Crown agrees, this is an extremely small operation. J & D Sewer Services is not a large national or international entity where the temptation would be to inflict a largely punitive fine.

J & D Sewer Services is essentially a one man “mom and pop” operation whose contracts would generally include small villages in Saskatchewan. Mr. Dodds has not worked in the industry since this happened and I suspect will not be re-entering the industry any time soon. There is no previous record of non compliance or of similar incidents. I accept that he has a limited ability to pay and I further accept that he is deeply remorseful and apologetic over this tragic and unnecessary loss of two young men, taken in the prime of their lives. Any fine I impose can in no way

reflect the loss of these two young men to their loved ones, their families and their communities. I further accept that he at no time asked either of the two young men to enter the manhole. [ 20 ] J & D Sewer Services did not contest these charges and it was unnecessary to hear evidence in the context of a trial which would have further imposed an immense emotional burden on the families.

This is a mitigating factor. [ 21 ] Therefore in order to achieve the primary objective of general deterrence, I impose a fine of $15,000.00 on each charge for a total of $30,000.00 in fines plus the surcharge. [ 22 ] I will order time to pay by December 31, 2017. ____________________________ B.M. Klause, J [1] 2012 SKPC 6 , 397 Sask R 105 [2] 2000 SKQB 255 , 194 Sask R 102