R. v. Yoho Resources Inc., 2021 BCPC 341

Citation: R. v. Yoho Resources Inc. 2021 BCPC 341 Date: 20211105 File No: 36992-1 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. YOHO RESOURCES INC. BRIAN BAKER GREAT NORTHERN BRIDGEWORKS LTD. STEVE ROSS RANDY KOSICK JOHN MAY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. REEVES Counsel for the Crown: N. Farinelli Counsel for Accused Yoho Resources Inc.: C. Alcock Counsel for Accused Baker: E. Kahs Counsel for Accused Great Northern Bridgeworks Ltd., L. Mullen Ross, Kosick, and May: Place of Hearing: Fort St. John , B.C.

Date of Hearing: November 5, 2021 Date of Judgment: November 5, 2021 A Corrigendum was released by the Court on February 25, 2022. The changes have been made to the text and the Corrigendum

is appended to this document. [1] THE COURT: So Crown and counsel, I am going to provide oral reasons on this matter as follows. I am doing so not out of afailure to recognize the very serious nature of the proceedings nor do I fail to recognize the very tragic loss of life that has occurred.

Rather, I note the significant efforts by counsel to truly understand their clients, by the Crown to likewise understand and provide to thecourt the myriad of considerations that I must view and consider in order to come to a fit and proper sentence, and by those individualswho have appeared today with counsel and expressed either personally or through counsel their deep and unreserved regret for whathappened. [2] I do reserve the right to edit my reasons should they be transcribed to clarify, for syntax and grammar, and I reserve the right tomake full reference to any of the applicable case law or documentary evidence that has been disclosed and/or relied upon in coming tomy decision and if, in reading the transcription, I consider that further and supplementary reasons are necessary, I reserve the right to do. [3] On March the 29th, 2019, Mr.

Derek Tompkins, as an employee of Great Northern Bridgeworks Limited, died as a result of atragic accident at a worksite found south of Wonowon, B.C., at a bridge construction project being completed by Great NorthernBridgeworks, or GNB, under contract to Yoho Resources Incorporated. Mr. Tompkins is survived by his spouse and three youngchildren as well as a tightknit community in a workplace that I am told treasured him. His widow remains in close contact with VictimServices, however, she declined to provide a victim impact statement.

I take this to reflect her deep and raw grief at the loss of herpartner. [4] I have heard an extensive detailing of what transpired on that day and in the days and weeks following as well as the corporateshortcomings and individual failings that led up to this tragedy through an agreed statement of facts entered as Exhibit 1. [5] Following that tragic day, charges were laid under the Workers Compensation Act and the Occupational Health and SafetyRegulations on the 25th of March, 2021.

Very shortly thereafter, beginning in April of 2021, all of the defendants signalled to the Crownthey intended to enter guilty pleas to one or more charges and, on July the 7th, 2021, this court recorded their guilty pleas. This matter ishere before me today for sentencing. [6] The fundamental sentencing principles set out in s. 718 of the Criminal Code apply here and, as directed at paragraph 32 of thecase of R. v. Abbott, 2008 BCCA 198, the principles of general deterrence and denunciation are most applicable.

I will hasten to addthat, based upon the evidence I have heard, the principle of rehabilitation has also been made apparent in that steps have already beentaken and my sentence will include further steps that will be taken by the offenders, both corporate and individual. [7] Pursuant to s. 217 of the Workers Compensation Act, the maximum sentence that may be imposed may include fines of not morethan $738,153.81, imprisonment for up to six months, or both. [8] Crown and counsel have helpfully referred me to 13 cases, from which I will draw a few here within my oral reasons.

Aspointed out by Justice Blair in the case of R. v. Cotton Felts Limited, (ON CA), at page 294, regulatory statutes areessential and in the public interest as they ensure standards of conduct, performance, and reliability. The enforcement of such statutes isachieved by fines imposed on the offending corporations. The amount of the fine, I would suggest, is as much art as science and mustconsider the size of the company involved, the scope of the economic activity in issue, the extent of actual or potential harm to thepublic, and the maximum penalty prescribed by statute.

Above all, the amount of the fine will be determined by the need to enforceregulatory standards by deterrence. [9] In coming then to a suitable fine, the case of R. v. Hoffman-La Roche, (ON SC), states at paragraph 22 that: The amount must be substantial and significant so that it will not be viewed as merely a licence for illegality nor as a mere slap on thewrist. The amount must be one that would be felt by the defendant.

It should also serve as a warning to others who might be minded toengage in similar criminal activity that it will be costly for them to do so even if they do not succeed in their illegal aims. [10] Now having said this, the case of R. v. Scott Steel, 2006 BCPC 207 points out that, in imposing any sentence, it must recognizedthat the sentence will not restore life or heal injury, but it will hopefully assist to create an atmosphere in the present and future whereother lives and injuries will not be lost or suffered.

Thus, while a fine must be significant enough that it cannot be considered simply acost of doing business, it in no way reflects the value of the lives lost, and I pause here to point out this was made very apparent by allcounsel in their submissions and I thank counsel for noting that on behalf of their clients. [11] In that case, as here, specific deterrence is not required as no person can walk away from such an event and fail to befundamentally shaken to be part of the cause of a co-worker or employee's, and here a member of the corporate family's, death.

Severalof the individuals here today, and all of you through counsel, have expressed your deep and meaningful regret for what occurred and Iaccept these statements and submissions as truly remorseful. [12] I looked at the case of R. v. Broda Construction Inc., 2019 BCPC 31, which was provided by counsel, as it also involved thedeath of two employees killed after the vehicle they were driving lost control while traversing a steep service road.

I found it instructivethat while the Crown in that matter sought a fine of $100,000 and defence, in contrast, argued for a fine of between $10,000 and $20,000plus a donation to a charitable organization to support similar victims of workplace accidents, the court in that decision basically camedown in the middle imposing a fine of $20,000 and a very significant charitable donation of $50,000. [13] That court noted as mitigating factors, most of which I find present today, that there were no prior convictions for a breach ofsafety legislation, there was no causal connection between the conditions of the site and the accident, and the business experiencedsignificant collateral effects which included loss of revenue and added costs for remediation.

There, as here, in aggravation the courtnoted the seriousness of the consequences. [14] I also reviewed the other decisions provided to me and, from these decisions, it is apparent that the range of sentences vary fromas low as several thousand dollars, particularly for individuals, to many hundreds of thousands of dollars for corporations. This is

particularly so in cases where the company is successful and I would say thus has no financial excuse for failing to provide adequate safety measures, or in instances where gross negligence is present or where the incident is highly foreseeable or, as here, where the consequences of a breach are serious as in a worker's death. [ 15 ] I have before me a joint sentence recommendation and, as counsel correctly referred me, the seminal case in such matters is that of Anthony-Cook , 2016 SCC 43 .

There the Supreme Court of Canada directed that, absent a joint sentence recommendation that would bring the administration of justice into disrepute or would otherwise be contrary to public interest, I should accept it and recognize that counsel and Crown are in a better position that this court to arrive at this recommendation.

This recommendation takes into account a myriad of factors including recognition of guilty pleas as we see here, the avoidance of the cost and difficulty of potentially long and possibly tenuous trials and the fact that those most affected by the trial process, here, the family and co-workers of Mr. Tompkins, are spared the trial process. [ 16 ] A number of counsel did raise before this court a proposal that I wish to address directly and that is the lack of a direct causal relationship by their client, in particular, the two corporations, and the ultimate accident.

The guilty plea provided to this court removes making such a finding from this court, but I do wish to speak in this regard. [ 17 ] When examining accident causation, what has become commonly known as the Swiss cheese model is instructive. This model borrows from the analogy of a block of Swiss cheese, an otherwise firm cheese, that nevertheless contains within it bubbles formed during the creation of the cheese. The analogy goes on that so long as these bubbles do not line up, the block of cheese is firm and stable. Should, however, the bubbles line up, the block of cheese loses its integrity and it collapses.

When applied to the causation of accidents, the disbursements of these bubbles was described in Vergara, Waché and Caron v. Air Canada , 2014 OHSTC 7 , at paragraph 145 as "defences in depth" that sees numerous modes or means of defence intervening against an outcome with one failure being compensated by the intervention of other modes or means or layers of defence.

Each of these layers of defence containing figurative holes that are not static and realign as events developed to avoid or result in a final or disastrous outcome. [ 18 ] Now, I make this point here to underscore that, much like the children's rhyme that begins “for want of a nail, a shoe is lost; for want of a shoe, a horse is lost”; companies that create policies, but then fail to police their compliance, permit bubbles to form and align.

This is so even where a company's work infrequently requires consideration of these policies, such as where height safety requirements are infrequently required as most jobs are done below that required height. I am going to suggest that this is all the more reason that, where a job is being conducted above that height, for company leadership to recognize that as a red flag, make appropriate inquiries, and thereby help ensure these bubbles do not line up. [ 19 ] Counsel for Great Northern Bridgeworks has advised that theirs is a local company in the Fort St. John area and they are active in the community.

The incident occurred not as the result of any conscious decision to avoid legislated safety measures, but rather as an oversight. Following the incident, Great Northern Bridgeworks held charity events to support Mr. Tompkins' family and has undertaken significant measures to ensure worker safety following the incident. Furthermore, they have suffered significant economic hardship and reputational damage as a result of this incident.

At Exhibit 2, Great Northern Bridgeworks set out the significant losses that the company has since incurred in revenue as the result of this incident as well as evidence of their efforts to adhere to and exceed Safety Council and worksite safety requirements. [ 20 ] Counsel for Mr. Kosick further advised that Mr. Kosick, who had worked closely with Mr. Tompkins, has also suffered as a result of this incident and remains deeply affected and remorseful.

As with his employer, the incident occurred not out of an effort to take shortcuts, but was an unfortunate accident that he failed to help prevent by following mandated safety measures. [ 21 ] Counsel for Yoho Resources did not disclose to this court company financials, however I am advised and the Crown was assured me that the proposed fine is significant in relation to the company earnings, the company having suffered losses as well as a result of this incident.

Furthermore, the fines proposed in the joint sentence recommendation are particularly significant when considered in relation to the value of the work that was being performed and which is the subject matter of today's hearing. [ 22 ] Counsel for Mr. Baker advised that his client was the first to signal his intent to plead guilty and he suggests this was an impetus for other parties to likewise enter early guilty pleas. Mr. Baker's income has been greatly reduced and, alone of all the parties before me today, he no longer works in his former field which has created significant economic hardship as a result.

In further recognition of his role in the incident and despite the fact that he no longer works in a field requiring such courses, he is voluntarily agreeing to take safety courses as part of the joint sentence recommendation. [ 23 ] Bearing all of this in mind and guided by the Supreme Court's guidance of Anthony-Cook , I am accepting the joint sentence recommendation as provided. [ 24 ] So I will therefore be ordering, Madam Clerk, in regards to the accused -- or the offender, Brian Baker, against Counts 17 and 20 to which he has pled guilty, that pursuant to ss. 217 and 220 of the Workers Compensation Act , Mr.

Baker will pay a $5,000 fine plus a 15-percent victim fine surcharge in relation to Count 17 and a $2,000 -- I am sorry, and a $2,500 fine plus 15-percent victim fine surcharge in relation to Count 20. These fines are to be paid to the clerk of the court in Fort St. John and to be deposited on or before the 6th of December, 2021. [ 25 ] Let me know when you are caught up. [ 26 ] THE CLERK: And, Your Honour, is there a victim fine surcharge for Count 20? [ 27 ] THE COURT: On both counts, yes, 15 percent. [ 28 ] THE CLERK: Oh, thank you, Your Honour. [ 29 ] THE COURT: Yes.

[ 30 ] Further, pursuant to s. 219(

g) of the Workers Compensation Act , Mr. Baker shall complete the following health and safety courses no later than the 31st of May, 2022, those being the B.C. Construction and Safety Alliance Legislation and Admin Course and the Canadian Centre for Occupational Health and Safety Health and Safety for Managers and Supervisors course, and Mr. Baker shall keep records confirming successful completion of these courses for a period of three years following his completion. [ 31 ] With regards to Yoho Resources Incorporated -- [ 32 ] CNSL N. FARINELLI: Your Honour, I am sorry to interrupt. [ 33 ] THE COURT: No. [ 34 ] CNSL N. FARINELLI: I just wanted to clarify that I had cited the

section just slightly wrong with s. 219 in the draft order. [ 35 ] THE COURT: Oh. [ 36 ] CNSL N. FARINELLI: It should be s. 219(1)(g). [ 37 ] THE COURT: Oh, okay, so 219(1)(g), Madam Clerk. [ 38 ] CNSL N. FARINELLI: Thank you. [ 39 ] THE COURT: Okay. Now, with regards to Yoho Resources Incorporated, pursuant to ss. 217 and 220 of the Workers Compensation Act , Yoho is going to pay a 30 thousand dollar fine plus a 15-percent victim fine surcharge in relation to Count 1. Okay? [ 40 ] THE CLERK: Thank you, Your Honour. [ 41 ] THE COURT: Okay.

In relation to Count 4, I am imposing a fine of 20 thousand dollars plus 15-percent victim fine surcharge. [ 42 ] THE CLERK: Thank you. [ 43 ] THE COURT: All right, and in relation to Count 5, a $20,000 fine plus 15-percent victim fine surcharge. [ 44 ] THE CLERK: Thank you. [ 45 ] THE COURT: Okay. All fines are to be paid to the clerk of the court, Fort St.

John, for deposit to the Accident Fund and are to be provided no later than December the 6th, 2021. [ 46 ] THE CLERK: Thank you. [ 47 ] THE COURT: Next, in regards to Great Northern Bridgeworks Limited and, again, this is pursuant to ss. 217 and 220 of the Workers Compensation Act , GNB will pay in relation to Count 6 a fine of $25,000 plus 15-percent victim fine surcharge. In relation to Count 9, a $10,000 fine plus 15-percent victim, and all fines are -- all fines will be -- in addition will have a 15-percent victim fine surcharge. [ 48 ] THE CLERK: Thank you. [ 49 ] THE COURT: Okay.

In relation to Count 10, a fine of $25,000; and in relation to Count 15, a fine of $10,000. Now, again, all payments are to be made to the clerk of the court in Fort St. John for deposits to the Accident Fund and are to be made no later than the 6th of December, 2021. [ 50 ] Further, pursuant to s. 219(1)(g), GNB shall ensure that its president, Steve Ross, complete the following health and safety course as part of its health and safety program no later than the 31st of March, 2022, and those courses are the B.C.

Construction and Safety Alliance Legislation and Admin course, and just let me know when you are caught up. [ 51 ] THE CLERK: Yes, I am ready, Your Honour. [ 52 ] THE COURT: Okay, and then also the Canadian Centre for Occupational Health and Safety Health and Safety for Managers and Supervisors course. [ 53 ] THE CLERK: Thank you. [ 54 ] THE COURT: Okay. I further order pursuant to s. 219(1)(

g) of the Act , GNB will ensure that its health and safety advisor, John May, complete the following courses and, again, no later than the 31st of May, 2022 -- so that will be the B.C. Construction and Safety Alliance Legislation and Admin course, B.C. Construction and Safety Alliance Train the Safety Trainer course, okay -- [ 55 ] THE CLERK: Thank you. [ 56 ] THE COURT: -- Canadian Centre for Occupational Health and Safety Health and Safety for Managers and Supervisors course, Canadian Centre for Occupation Health and Safety Occupational -- I am sorry, what is H/S stand for? Health and safety? [ 57 ] CNSL L.

MULLEN: I believe that is Health and safety. [ 58 ] THE COURT: Okay, Occupational Health and Safety Management System course and, lastly, the Canadian Centre of Occupational Health and Safety Workplace Inspections course; and I further direct GNB will keep records confirming successful completion of the courses for a period of three years following.

[ 59 ] THE CLERK: Thank you. [ 60 ] THE COURT: Okay. So, lastly, with regards to Mr. Kosick, I am imposing a fine of $5,000 in relation to Count 17 and, again, all fines are plus 15-percent victim fine surcharge. [ 61 ] THE CLERK: Thank you. [ 62 ] THE COURT: Okay, and with relation to Count 20, a $3,500 fine; again, all payable to the clerk of the court in Fort St. John for deposit to the Accident Fund and to be paid in full on or before December 6, 2021. [ 63 ] THE CLERK: Thank you. [ 64 ] THE COURT: Okay, further, pursuant to s. 219(1)(

g) of the Act , Mr. Kosick shall complete the following health and safety courses, again, no later than the 31st of May, 2022: the B.C. Construction and Safety Alliance Legislation and Admin course and the Canadian Centre for Occupational Health and Safety Health and Safety for Managers and Supervisors course and, lastly, Mr. Kosick shall keep the records confirming his successful completion of these courses for a period of three years following that completion. [ 65 ] Now, Ms.

Farinelli, I take it you will be drafting the final orders, pass them to counsel as required for signature, and then forward them to me? [ 66 ] CNSL N. FARINELLI: Correct, Your Honour -- [ 67 ] THE COURT: Okay, thank you. [ 68 ] CNSL N.

FARINELLI: -- and the Crown is directing a stay of proceedings with respect to the remaining counts. [ 69 ] THE COURT: Okay, let us just make sure we get those correctly recorded. [ 70 ] THE CLERK: So, Your Honour, I have on Information 36992-1 -- [ 71 ] THE COURT: Mm-hmm. [ 72 ] THE CLERK: -- for Brian Baker, Counts 1, 2, 3, 4, 18, and 19; for Great Northern Bridgeworks, Counts 4, 8, 11, 12, 13, 14, 16; for Randall Kosick, Counts 7, 8, 9, 12, 13, 14, 15, 16, 18, 19; for John May, Counts 10, 11, and 12; for Steve Ross, Counts 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16; and for Yoho Resources, Counts 2 and 3. [ 73 ] CNSL N.

FARINELLI: That is correct. Thank you, Madam Clerk. [ 74 ] THE COURT: Yes, okay. All right. [ 75 ] CNSL N. FARINELLI: Thank you, Your Honour. I have nothing further. Thank you to my friends, as well. [ 76 ] THE COURT: Thank you very much. Mr. Alcock? [ 77 ] CNSL C. ALCOCK: Thank you, sir, there is nothing more from me. [ 78 ] THE COURT: Okay, and I am sorry, I know that Mr. Parker and Mr. Stobo are also present, anything from either of them? I take it no. [ 79 ] UNIDENTIFIED SPEAKER: Your Honour, nothing further [indiscernible]. [ 80 ] THE COURT: Thank you. Ms. Mullen? [ 81 ] CNSL L.

MULLEN: Thank you, Your Honour, nothing further. Thank you to my friends and I can confirm nothing further on behalf of my clients. [ 82 ] THE COURT: Thank you so much. Mr. Kahs? [ 83 ] CNSL E. KAHS: Thank you, Your Honour, nothing further. [ 84 ] THE COURT: Again, I want to thank all counsel for your submissions and detailed work. It was of tremendous assistance to the court. As I said, I am aware of how difficult the incident has been for all involved. You are all small companies and individuals. This has touched you individually, I have no doubt.

I do wish all of you the very best of luck going forward, and that concludes this matter. Thank you. (REASONS CONCLUDED) CORRIGENDUM - Released February 25, 2022 In the Reasons for Sentence dated November 5, 2021, the following changes have been made:

[1] Paragraph 4 should read: I have heard an extensive detailing of what transpired on that day and in the days and weeks following as well as the corporate shortcomings and individual failings that led up to this tragedy through an agreed statement of facts entered as Exhibit 1. _____________________________ The Honourable Judge D.T. Reeves Provincial Court of British Columbia