Her Majesty the Queen - v. -, 2021 SKPC 21

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 21 Date: February 26, 2021 Information: 991128586 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Basic Truck and Trailer Repair Inc. Appearing: B. Rodgers For the Crown J. Watson For the Accused SENTENCING DECISION R.D.

JACKSON , J I INTRODUCTION [ 1 ] Basic Truck and Trailer Repair Inc. (Basic Truck) has entered a guilty plea to the following count on Information 991128586: 3) being an employer failed to ensure that where a worker may be required or permitted to perform maintenance, repairs or other work on or under an elevated part of a unit of powered mobile equipment, the elevated

part is securely blocked to prevent accidental

movement as required by ss. 164(1) of The Occupational Health and Safety Regulations, 1996 , resulting in the death of a worker, namely Brian Mazzei, contrary to ss. 3 - 78 (

g) and 3 - 79 of The Saskatchewan Employment Act . II BACKGROUND [ 2 ] The defendant at all material times operated a truck and trailer repair shop in Saskatoon. Mr. Mazzei (the deceased), a person with in excess of 30 years’ experience as a mechanic, was the shop supervisor and lead hand at the business. [ 3 ] On July 30, 2018 Mr. Mazzei and another mechanic were working together on a gravel truck which had mechanical problems concerning the gravel box once elevated. While the box could be raised with hydraulic controls, it was not able to be lowered.

At close of work, the problem had not been remedied so repair efforts were suspended until the next day. The box remained in the raised position and 2 x 4 lumber pieces were stacked on each side of the truck rails as blocking devices to secure the box. [ 4 ] The next morning on July 31, 2018 Mr. Mazzei continued work on the truck unassisted. He climbed onto the roof and began cutting through a 5” x 12” steel band he had fashioned the day prior and attached to the gravel box in an attempt to fix it, when unexpectedly, the band broke. The box then descended rapidly, pinning Mr.

Mazzei between the apron of the box and the truck causing his death. [ 5 ] Subsequent investigation determined that the hydraulic fluid may have drained back through the lines overnight by reason of the position the controls had been left in. Further, the blocking utilized under the truck box was insufficient and inadequate to prevent the fall of the box onto Mr. Mazzei. [ 6 ] Subsequently, OHS investigators researched and uncovered several other available superior blocking procedures and mechanisms utilized in the industry when working on large truck boxes of this nature.

These included placing large 8 x 8 or 6 x 6 wooden beams across the entire width of the frame and thereafter placing pre-fabricated safety stands on the frame. Where work involved hydraulic cylinders, a safety chain was utilized as well, held in place by a crane. Commercial mechanisms including the “Dump-lok” and “Cottrill Dump Body Prop” were also available and advertised on the Internet. Both devices used safety stands and chains to achieve the result of securely blocking the dump box so that it could not fall. In addition, SafeWork Manitoba had an

article published online regarding the blocking of raised dump boxes, also referring to a safety stand which attaches to the truck frame. [ 7 ] At the sentencing hearing, Mr. Mazzei’s spouse, son, daughter, sister and friend provided moving Victim Impact Statements underscoring the tragic and significant loss of Mr. Mazzei to them and the community at large. The principal of Basic Truck, Mr. Anderson, expressed through counsel, his personal remorse and the impact this incident had on Mr. Mazzei’s fellow employees.

III LEGISLATION [ 8 ] The charges against the defendant are pursuant to The Saskatchewan Employment Act, SS 2013, c S - 15.1 [ Act ], which came into force on April 29, 2014 and The Occupational Health and Safety Regulations, 1996 , RRS c O-1.1 Reg 1 [ Regulations ]. [ 9 ]

Part III of the Act at subsection 3-78 outlines offences and 3-79 deals with penalty provisions, the relevant sections of which for this matter are 3-79(7), (8) and (9):

(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.

(8) If an individual is convicted of an offence mentioned in subsection (7), the convicting judge may, in addition to imposing a fine, order that the convicted individual be imprisoned for a term not exceeding two years.

(9) If a corporation is convicted of an offence mentioned in subsection (7), the convicting judge may order that 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 imposed on the convicted corporation; (

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. IV CASE LAW [ 10 ] The Court is grateful to Crown and defence for the many decisions and thorough written submissions provided. As counsel point out, and the cases confirm, many common themes and principles have emerged over time concerning situations where employees have suffered serious injury or death while engaged in the course of their employment. Public Welfare Offences

[ 11 ] These type of cases fall into the category of public welfare offences where “. . . basic rules are established and enforced to protect the physical, economic and social welfare of the public”. [1] Equally so, the prevention of future harm, where at all possible, is a significant policy objective. [2] Deterrence [ 12 ] The cases, without exception, emphasize that the paramount sentencing principle for public welfare offences is deterrence. [3] Baynton, J in Sage Well Services Ltd . [4] however tempered this to some degree when he cautioned that “. . . the degree of culpability of the offender is still a very significant factor from a sentencing perspective that is not replaced by the deterrence factor alone”.

Further, he stated that as clearly indicated by Cotton Felts, supra , the objective of the fine imposed. . . is deterrence, not retribution. No matter how high the fine may be, it can never replace the life that has been lost or the injury that has been suffered”. [5] Sentencing Principles [ 13 ] Westfair Foods [6] has been cited and applied in numerous decisions, both before and after the 2014 amendments, as a useful template when considering proper sentencing principles, which, in effect, expand upon the legislative considerations enumerated in s. 3 - 79 (9).

Whelan, J at para 38 states: [38] Having regard to the approach taken in Cotton Felts Ltd., supra, and the emphasis upon deterrence as a sentencing factor in the decisions that I have discussed, the approach which best fits with my understanding of sentencing of regulatory offences, and pertaining most specifically to occupational health and safety regulation, might be expressed as follows: i. The primary objective of regulatory offences is protection and in the context of occupational health and safety legislation, it is the protection in the workplace of the employee and the general public. ii.

The sentencing principle which best achieves this objective is deterrence and while deterrence may be regarded in its broadest sense and includes specific deterrence, general deterrence is a paramount consideration. iii. There are numerous factors, which may be taken into account and the weight attributed to each will depend upon the circumstances of each case.

The following is not an exhaustive list of factors that may be considered, but they are likely relevant to most occupational health and safety offences: - 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, - the scope of the economic activity in issue — the value or magnitude of the venture and any connection between profit and the illegal action, - the gravity of the offence including the actual and potential harm to the employee and/or the public — the degree of risk and extent of the danger and its foreseeability, - the maximum penalty prescribed by statute, - the range of fines in the jurisdiction for similar offenders in similar circumstances, - the ability to pay or potential impact of the fine on the employer’s business, - past diligence in complying with or surpassing industry standards, - previous offences, - the degree of fault (culpability) or negligence of the employer, - the contributory negligence of another party, - the number of breaches — were they isolated or continued over time, - employer’s response — reparations to victim or family — measures taken and expense incurred so as to prevent a re-occurrence or continued illegal activity and - a prompt admission of responsibility and timely guilty plea.

V APPLICATION OF SENTENCING PRINCIPLES The Westfair principles

Size of the business and degree of organizational sophistication and scope and value of the venture [ 14 ] Basic Truck is a locally owned, one location, truck and trailer repair shop in Saskatoon employing an average of six people. The internal hierarchy was structured upon Mr. Mazzei as shop supervisor and lead hand overseeing the work of the other employees. No evidence was presented concerning any other degree of sophistication regarding work or employee structure, training, employee meetings, safety protocols implemented, and so forth.

Gravity of the offence, degree of risk and its foreseeability [ 15 ] The circumstances of this incident were the most grave as Mr. Mazzei lost his life. The degree of risk when blocking large heavy equipment is high and consequences of failing to properly do so causing death or injury is eminently foreseeable. Maximum penalty prescribed by statute [ 16 ] The maximum penalty for corporations where a death is involved is $1.5 million which does not apply here.

Both defence and Crown agree that the large increase in the maximum fine in 2014 (previously $300,000.00) was to flag the largest and worst corporate offenders. The highest provincial fine imposed to date (under appeal) was levied in R v Langenburg Redi-Mix Ltd. [7] of $400,000.00 plus $160,000.00 surcharge, where the Court noted the offender to be a part of a large national company with a great deal of organizational sophistication. Range of fines for similar offences in similar circumstances [ 17 ] The continuum of fines for OHS cases is immense, ranging from $10,000.00 to the above-mentioned $560,000.00.

Due primarily to the many different fact variables of each incident and the disparate circumstances of each offender, there are no universally guiding precedents. Sentencing for these types of cases is a highly individualized process.

Recognizing these inherent difficulties, courts in past have specifically discouraged any attempts to standardize the fines or impose any base starting point. [8] [ 18 ] Further, as pointed out by Crown counsel, many fines which have been imposed were arrived at by way of joint submission, no doubt involving the usual quid pro quo considerations inherent in such pre-sentencing discussions.

As a result, their precedent value is somewhat diminished for contested sentence hearings as is the case here. [ 19 ] The following examples of worker injury and death cases involving small to mid-size businesses demonstrates the wide disparity in sentences imposed:

a) R v Pederson, Sr ., 2000 SKQB 255 • Worker suffocated when walls of trench collapsed in on him; • One person business with two employees; • $9,000.00 contract to do the work; • $95,000.00 fine reduced on appeal to $40,250.00, total fine and s/c.

b) R v Riemer , 2012 SKPC 119 , 402 Sask R 214 • Two persons killed and several injured resulting from accused snagging an underground natural gas line with backhoe; • Small, one-person operation which occasionally hired sub-contractors; • No type of organizational structure or sophistication to business; • Labelled a “mom and pop operation” by judge; • $28,000.00 total fine and s/c.

c) R v J and D Sewer Services

(1984) Ltd ., 2016 SKPC 125 • Two employees died from hydrogen sulphide toxicity after entering sewer manhole (tragically, the second as a result of attempting rescue of the first); • Very small one man business described by judge as “mom and pop operation” with limited ability to pay; • $42,000.00 fine and s/c.

d) R v Shercom Industries Inc., 2018 SKPC 3 [ Shercom Industries ] • Worker killed after becoming entangled in conveyor belt mechanism;

• 47 employees and designated management team; • Classified by judge as “mid-sized company with some organizational sophistication”; • $420,000.00 total fine and s/c.

e) R v Carrier Forest Products Ltd ., 2019 SKQB 84 [ Carrier ] • Employee killed by becoming entangled in wood chipper machinery; • 136 employees however at the time of the incident, the company was operating at significant losses to the extent that the sentencing judge labelled it “insolvent”; • $87,500.00 total fine and s/c.

f) R v Fire Sand Real Estate Ltd ., 2019 SKPC 54 [ Fire Sand Real Estate ] • Tradesman severely injured when knocked from scissor-lift by nearby crane; • Company employed 16 people and was experiencing financial losses requiring monthly cash injections; • Not yet turned a profit according to the owners; • Described by judge as “relatively small, family-owned business that is part of a larger family-owned enterprise. . . [which] does not fall into the category of a “mom and pop operation”; • $84,000.00 total fine and s/c.

g) R v C & D Electric Ltd . (10 January 2020) Estevan, CRM 28/2017, Chow J (Sask QB) • Worker died as a result of trench cave-in; • Small business operation, very similar circumstances to Pederson, supra ; • $10,000.00 total fine and s/c.

h) R v Lorne Tardif Operating o/a Elite Eavestroughing (3 October 2018) Moose Jaw, Kovatch J (Sask Prov Ct) • Employee fell from garage roof while installing eavestroughing sustaining a fatal head injury; • One person unincorporated business with small number of employees; • $23,800.00 total fine and s/c (Joint Submission).

i) R v 101186505 Saskatchewan Ltd . (22 August 2017) Swift Current, Bazin J (Sask Prov Ct) • Employee killed in a construction packer rollover; • Company operated by husband and wife with four full time employees and two to three seasonal employees; • Gross revenue in 2016 in excess of $1 million with net corporate income of $6,000.00; • $70,000.00 total fine and s/c. (Joint Submission)

j) R v Cowan Bros. Transport Ltd . (21 September 2017) Montreal Lake, Harradence J (Sask Prov Ct) • Trucker killed when caught underneath his semi being pushed from the mud; • Family owned operation with limited number of employees; • $84,000.00 total fine and s/c. (Joint Submission)

k) R v Brad Hammond Construction Ltd . (24 January 2018) Carlyle, Wiegers J (Sask Prov Ct) [ Brad Hammond Construction ] • Worker paralyzed from waist down as a result of falling from roof of shed being constructed; • Construction company employing roughly 15 workers; • Described as a “small tight knit company”; • $140,000.00 total fine and s/c. (Joint Submission)

l) R v Carmont Construction Ltd . (12 July 2018) Saskatoon, Metivier J (Sask Prov Ct) [ Carmont ] • Worker killed by concrete sound barrier slab being unloaded from truck;

• General contracting company employing 15 to 25 staff; • $80,000.00 total fine and s/c. (Joint Submission)

m) R v Realistic Roofing Inc . 2007 SKPC 23 , 296 Sask R 46 [ Realistic Roofing ] • Employee paralyzed from chest down when unsecured hoist fell onto him from the roof; • One-owner company employing “up to 5 or more people”, described as a “mom and pop operation”; • Retained earnings of company in 2006 totalled $101,161.00; • $19,250.00 total fine and s/c.

n) R v T & L Den Brok Enterprises Inc., 2014 SKPC 97 , 444 Sask R 73 [ T & L Den Brok Enterprises ] • Employee changing tractor tire was paralyzed when tractor fell as a result of failure of the hydraulic jack; • Local business employing 13 people generating $325,000.00/year revenue; • Sentencing judge noted that employer made significant changes post-incident including hiring outside safety consultants and expending approximately $100,000.00; • $30,800.00 total fine and s/c.

o) R v Rosin , 2005 SKQB 537 , 273 Sask R 114 • Part-time employee killed when bucket lever arms of skid-steer dropped unexpectedly; • Retired 75 year old farmer who operated small snow removal business; • One to two employees; • Net annual income less than $10,000.00; • $34,500.00 fine reduced on appeal to $17,250.00, total fine and s/c. Ability to pay or potential impact on the employer’s business [ 20 ] Almost all of the cases cited by counsel speak to the ability to pay or potential impact on the employer’s business as a significant factor to be considered when levying a fine.

Although some cases have discounted this as a sentencing factor, these would have to be considered as outliers when compared to the majority view. [9] The cases however are clear that the size of the fine must be significant enough not to be considered a mere “licensing fee” [10] or “the cost of doing business” [11] .

In other words, sharp enough to sting but not to cause the ruination of the business. [ 21 ] In the present case, Basic Truck financial statements provided for 2019 and 2020 show gross revenues to be $1,107,147.00 and $1,184, 955.00 with an adjusted gross after costs of sale of $843,471.00 and $858,311.00, respectively. Wages and benefits for 2020 totalled $487,425.00 as well as a separate line item for management wages (presumably for the owner) disclosing $75,235.00 for 2020. No information was provided whether the other principal owner, Mrs.

Anderson, received an income and, if so, to what extent from the total wages paid. Retained earnings in the company rose from $45,529.00 in 2019 to $74,665.00 in 2020. [ 22 ] Although small in employee numbers, Basic Truck cannot be characterized as a “mom and pop” operation as referred to in some of the cases which generally involved one person operations with very limited staff, earning modest yearly income.

By comparison, Basic Truck generates yearly revenues in excess of $1,000,000.00 and was able to pay wages (including management) in 2020 of $562,660.00 (roughly 66% of entire expenses) while increasing its retained earnings to nearly $75,000.00. Past diligence in complying with or surpassing industry standards [ 23 ] Defence counsel points out that there are no industry standards for blocking heavy equipment. Each place of business is left to its own devices in this regard.

However, when comparing the use of individual 2 x 4 blocks to the superior methods as described in para. 6, supra , common sense would dictate that only the latter methods would be totally effective. Previous offences [ 24 ] The defendant has no previous OHS citations or convictions. Degree of fault (culpability) or negligence of the employer [ 25 ] As noted, the Court has determined that the within incident was totally foreseeable and could have been prevented if the defendant had taken reasonable steps to ensure a safe work environment. Cost to do so was certainly not a factor.

It was plainly negligent not to regularly assess the shop area for potential hazards that could cause serious injury or loss of life. The business did not fix lawn mowers, but rather heavy industrial equipment capable of inflicting serious harm if a jack slipped, a hoist failed or, as in this case, no safe method of blocking was employed from the outset. [ 26 ] When an employer is attempting to determine what proactive steps could be taken for the particular business being engaged

in, the first and foremost question should be “what’s the worst case scenario that could unfold and what steps can be taken to minimize or eliminate such risk”. For example, in Shercom Industries , the employee was killed in horrible fashion when he was dragged into the conveyor belt mechanism despite frantic calls to 911 and his attempts to alert co-workers. Following the incident, many safety improvements were made including simple emergency stop devices and brake cables installed at each conveyor within arms’ length of the working employees, total cost of which was $2,650.00.

It would seem logical that such prophylactic steps could have been taken by a simple walkaround and deciding how best to protect employees by preventing serious injury should they become entangled in the equipment. Contributory negligence [ 27 ] Defence counsel has identified three main reasons why this tragic incident occurred which included accidental draining of hydraulic lines, the fabricated steel band breaking unexpectedly, and ineffective blocking of the box.

However, the inescapable truth is that, irrespective, had the box been properly blocked and supported as described in para. 6 above, it would have been immobilized and totally prevented from descending upon Mr. Mazzei. The sole responsibility for ensuring that this was in place and providing a safe workplace lies with the employer.

In T & L Den Brok Enterprises, supra , Koskie, J stated it thus at para. 20: [20] Blocking of a vehicle is done to protect employees in event of an employee mistake or equipment failure, so there is no issue the employer is 100% liable in this case, even though the employee was in the incorrect position at the time of the accident. Number of breaches – isolated or continued over time [ 28 ] Defence counsel submitted that this type of blocking was common in the industry, which Mr. Mazzei had utilized in the past, so this was not an isolated incident.

Employer’s response – isolated or continuing over time [ 29 ] Surprisingly, there is no indication in the Agreed Statement of Facts or counsel submissions as to any steps taken post- incident to improve safety protocols or equipment at the defendant’s business. This must be considered a significant component of the sentencing process. [12] A heavy fine may serve to satisfy specific, and more importantly, general deterrence but equally important, what steps are being taken to ameliorate or eliminate the safety risks that caused or could cause future harm to the employees?

Without this, are the true objectives of the Act being met? In the Court’s view, much more emphasis must be placed on this aspect to achieve meaningful and lasting employee protection. [ 30 ] Perhaps this sentiment was most eloquently expressed in a Victim Impact Statement by a mother who lost her 19 year old son in a workplace fatality: [13] I think the important thing our society can get out of this tragedy is how to make workers safety and training a priority, especially for young workers and those working jobs with high risks. Not one person should die on the job. . .

I want to get the message out there that today is about Austyn, but it is also about the importance of safety and the importance of employers taking responsibility. To me, today is about accountability to society and the loved ones left behind. . . Austyn had the right to go to work. He had the right to work in a safe environment, to be properly trained, to have his employer keep him safe. He had the right to return home safe after work every night. After Austyn’s death and looking into the statistics on young workers’ injuries and death, the numbers say – the numbers are sad and scary.

We need to focus on proper training and teaching all employees and employers that this is a priority. A prompt admission of responsibility and timely guilty plea [ 31 ] The defendant has entered a timely guilty plea to the offence. VI APPROPRIATE SENTENCE [ 32 ] Crown counsel suggests there is an upward trending in Saskatchewan for OHS fines.

Support for this can be found in the judicial comments in Fire Sand Real Estate, and Brad Hammond Construction, supra, [14] citing, inter alia, the significant increase in the maximum fines in legislative amendments of 2014. [ 33 ] Meschishnick, J in Carrier at paras. 35 and 36 , reasoned however that a legislative increase in maximum fines alone does not signal an increase for fines generally: [35] When, in a legislative amendment, the minimum sentence is not changed or a range provided but the maximum fines increased the better conclusion to be drawn is that there was a need to ensure that fines for the largest corporations that are the worst offenders could be large enough to ensure that the fine would not be simply a cost of doing business. [36] It does not follow that all sentences for infractions after the amendment are to increase which in turn means that sentences for infractions prior to the amendment can be considered on the questions of parity and fitness. [ 34 ] It appears, nonetheless, that the issues involving worker safety have been ongoing for many years and are continuing unabated to any significant extent.

No doubt profit motive and poor employer foresight will continue to play a prominent role in accident causation, which, as the cases universally endorse, is best addressed by general deterrence. This will necessitate higher fines over time, hopefully in tandem with increased education and inspection until real improvement is realized.

[ 35 ] Crown counsel strongly urged the Court to consider “time to pay” as a proper sentencing principle when determining the ability to pay, rather than only considering time to pay once the fine has been levied. [ 36 ] On this point, Meschishnick, J in Carrier at para. 53 states: [53] While there are principled arguments on each side of this debate, I need not decide in this case whether sound sentencing principles allow a sentencing judge to consider time to pay when determining an offender’s ability to pay or whether that is a consideration that arises only after the amount of a fine is imposed. [ 37 ] The position of this Court is that time to pay ought not to factor into the mix in determining quantum of the fine or ability to pay.

Rather, the preferred avenue is to consider all of the proper sentencing principles as pronounced in the legislation and case law in coming to an appropriate fine before any consideration of extending the option of time to pay is entertained. [ 38 ] The sentencing positions of the parties could not be more divergent. The Crown seeks a total fine, inclusive of surcharge, of $189,000.00.

Defence counsel submits that the fine, inclusive of surcharge, should be in the $30,000.00 - $35,000.00 range. [ 39 ] Apart from the wide chasm of the fine quantum suggested, Crown and defence wholly disagree on the characterization of the central issue regarding the sufficiency of the blocking of the gravel box.

From the Crown’s perspective, use of 2 x 4 blocks is an aggravating factor given the much safer alternatives available, whereas defence contends that it is mitigating in that blocking was implemented – just that it was not effective in this instance. [ 40 ] Between these two perspectives, in light of the extreme risk of working with heavy equipment and the potential of serious injury or death resulting, the Court is inclined to the Crown’s position that use of this type of makeshift blocking is an aggravating factor. [ 41 ] Further, the Court does not see the defendant in the light of a small, financially precarious, business operation only able to sustain a total fine and surcharge of $30,000.00 - $35,000.00, as suggested by defence.

Nor does its ability to pay comparative to other like businesses (as best as can be compared) warrant the level of fine urged by the Crown. [ 42 ] As far as culpability is concerned, Basic Truck had, and continues to have, a very high degree of responsibility to maintain employee safety in its inherently dangerous workplace.

It is simply not good enough to rely upon “industry standard” or “common practice” when this, in itself, is inadequate or ineffective. [ 43 ] Finally, the Court was not apprised of any steps taken by Basic Truck to improve safety protocols, replace or upgrade safety equipment (particularly in regard to heavy equipment blocking) or to institute safety training. As noted, businesses should be very proactive in this respect to avoid serious harm or death to vulnerable workers in and around these types of environment.

Failure on Basic Truck’s part to take such steps is also an aggravating factor. [ 44 ] In conclusion, balancing the paramount consideration of general deterrence with all of the foregoing sentencing principles set out, the Court determines that a fine of $65,000.00 plus surcharge of $26,000.00, totalling $91,000.00 is the appropriate disposition in these circumstances. [ 45 ] Time to pay is extended to 36 months to allow the defendant the opportunity to absorb this expense more evenly over time, should it so require. ____________________________ R.D. Jackson, J