) ) HER MAJESTY THE QUEEN ) Tim Chudy ) for the Crown - v. - ), 2015 MBPC 40

2015 MBPC 40 THE PROVINCIAL COURT OF MANITOBA SWAN RIVER CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Tim Chudy ) for the Crown - and - ) ) SPRUCE PRODUCTS LIMITED ) Jamie Jurczak ) for the Accused Accused. ) ) Judgment Delivered: ) September 25th, 2015 ) HARAPIAK, P.J.

Summary [ 1 ] On May 9 th , 2013 long-time Spruce Products’ employee Ronald Maycher was operating an Edger when a partially processed log, known as a cant, became stuck. He reversed the Edger to free the cant, not knowing that a piece of wood had just been thrown onto the conveyer belt on the other side of the machine. This piece shot through, hitting him in his left groin and exiting through his right buttock. Charge [ 2 ] Spruce Products Limited plead guilty to breaching s. 4(1) (

a) of the Workplace Safety and Health Act C.C.S.M. c. W210 (“the Act ”) by failing to implement a written safe work procedure specific to the reverse operation of the Edger. The Law [ 3 ] S. 4(1)(

a) requires that: “Every employer shall in accordance with the objects and purposes of this Act (

a) ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his workers;” [ 4 ] Breaching the Act is an offence punishable, on first offence, to a maximum fine of not more than $250,000. The court has the discretion to include within this maximum an additional penalty pursuant to s. 55.1(1) “for the purpose of educating the public on matters relating to workplace safety and health.” [ 5 ] Counsel jointly recommends a fine of $5000 plus costs and an additional penalty of $20,000.00. The additional penalty provision has not been used in Manitoba since its inception.

[ 6 ] Counsel characterized this joint recommendation as being the result of a “true plea bargain.” Crown Counsel advised that the Company’s due diligence may or may not have been made out, and that both parties wanted to avoid subjecting the victim to rigorous cross-examination on his training and his communication with his colleague at the time of the incident. [ 7 ] My task is to render a fit and appropriate sentence giving serious consideration to this joint recommendation. The Facts [ 8 ] The Agreed Statement of Facts provides a helpful

summary, which I thank counsel for and have partially incorporated into these reasons. [ 9 ] Spruce Products Limited is a family-owned and operated manufacturer of lumber and wood products which employs approximately 50 people. They have only recently come through a period of difficult economic times which impacted the Canadian sawmill industry generally. They have no prior convictions under the Act . [ 10 ] Mr. Maycher has worked for the Company for over 30 years. His task on May 9 th , 2013 was to operate the Edger.

The Edger starts operating when the worker pushes a button bringing a cant from a transfer deck to the rollers of its in-feed area. The rollers move the cant to the cutting area. When the cant gets closer to the cutting area a press roll pulls it off the rollers and through the anti-kickback fingers into the saw blades. After passing through the saw blades the cant is turned into pieces of lumber which travel onto the conveyer belt ending up being dropped onto a transfer table for sorting. [ 11 ] Sometimes the cant enters the transfer deck at an angle and it gets stuck.

There are 2 responses to this, developed by common practice. If the cant is not too heavy the worker uses a picaroon (a kind of hand pick) to reposition the log. Kickback occurs when wood is unexpectedly thrown back at the worker. The anti-kickback fingers are in place to prevent kickback during cutting. This protects the worker when adjusting a cant during operation. The anti-kickback fingers open completely during reverse operation. If the cant is too heavy the worker is required to manually reposition the cant. [ 12 ] To manually reposition the press rollers have to be lifted to free the cant.

This can only be done by putting the machine in reverse, thereby lifting the press roll, opening the kick-back fingers and moving the rollers in reverse. [ 13 ] This was what Mr. Maycher, a worker with 20 years experience on the Edger, did on May 9 th , 2013. He checked the mirror over the out-feed end of the Edger to make sure the conveyer belt was clear. It was. What he did not know was that a piece of wood from the previous cut had fallen and landed between the two conveyer belts. [ 14 ] This was a case of the worst possible timing.

Between the time Maycher checked the mirror and reversed the Edger another worker noticed that stray piece of wood on the floor. He tossed it onto the conveyer belt and Maycher reversed the Edger. While Maycher reached for the end of the cant to straighten it on the input side the rotation of the blades shot the stray piece of wood out backwards towards him, entering his body in his left groin and exiting through his right buttock. Both workers had been trained not to either stand in line with the Edger when it was in reverse or throw anything onto the conveyer belt when it was in reverse.

This training had not been formalized with a written procedure, however, and this is where the Company failed to meet its obligations under s. 4(1) (a).

The Company’s Breach [ 15 ] The Workplace Safety and Health Regulations require employers to ensure that machines have safeguards on them to protect workers from debris or, if not practicable, alternate mechanisms or procedures be put in place equal to or greater than the protection offered by a safeguard. [ 16 ] Spruce Products was aware that the reverse operation could expose workers to flying debris and had attempted to implement sufficient alternative safety measures.

This included a mirror to provide view of rear conveyer belt and training not to stand in the in- feed area while the Edger was in reverse. [ 17 ] Although the employer recognized this risk safe work procedures for the reverse operation of the Edger, which could be used as

a documented instruction training tool or safety checklist, were not developed. [18] Spruce Products concedes that: “specific written safe work procedure for the reverse operation of the Edger was lacking, and therefore workers may not have beenproperly trained on how to address the hazards in relation to the reverse operation of the Edger, and how to safely complete the tasksassociated with the reverse operation of the Edger.” Victim Impact [19] Mr. Maycher provided a victim impact statement to the court. He recognizes that, considering the nature of the incident, hisinjuries could have been worse.

Although he was out of hospital within five days he still struggles with some of the aftereffects morethan two years later. The injury has impacted his sleep and he still suffers some pain. He appreciates the way the Company treated himand the efforts that were made to ensure the workplace became, as he put it, “very safe”. He still thinks about the accident every day. Case Law [20] The leading case in sentencing for this type of offence is R. v. Cotton Felts Ltd. from the Ontario Court of Appeal. (ON CA), [1982] O.J. No. 178).

The Court in that decision took note that enforcement of health and safety statutes weregenerally “achieved by fines imposed on offending corporations” and that “[w]ithout being harsh, the fine must be substantial enough to warnothers that the offence will not be tolerated” and “not appear to be a mere license for illegal activity”.

Accordingly, the jurisprudence has developed with a heavy emphasis on the sentencing principle of general deterrence to achieve thisobjective. [21] The factors a sentencing judge is to consider when determining a deterrent sentence include, as noted by the Ontario Court ofAppeal: “the size of the company involved, the extent of actual and potential harm to the public, and the maximum penalty as prescribed by law.” [22] In the joint book of authorities counsel provided three cases where employers have been ordered to pay “additional penalties” inNova Scotia and Newfoundland and Labrador. [23] In R. v.

Nova Scotia Power Corp. Inc. 2008 NSPC 72 an employee at a coal plant fell through a narrow slot into a coal hopperand was found dead some 10 hours after being discovered missing. It was a complicated case factually, as it was unclear, due to healthproblems of the deceased, whether the fall caused his death or he fell unconscious or already deceased into the hopper. Judge Derrickfound the slots were a real hazard but, due to the evidentiary difficulties, did not find the worker’s death to be a consequence of thebreach she could consider.

She did, however, consider that a serious fall occurred. [24] The Company was fined $25,000 and ordered to pay $15,000 towards public awareness sessions developed by the Nova ScotiaConstruction Safety Association. [25] In R. v. Department of Transportation and Works (NL) and City of St. John’s, 2015 NLPC asphalt inspection was being donejust outside the City of St. John’s without appropriate safety gear or signage.

A traffic accident occurred and 2 employees were injuredand a third killed. [26] Both parties took significant steps to enhance safety measures respecting roadside work after this event and used the incident asa training tool, which were seen as mitigating factors. The court cited, with approval, R. v. New Glasgow (Town), [2008] N.S.J. No. 123where $85,000 of the total $110,000 penalty assessed was directed to “creative sentencing” similar to Manitoba’s “additional penalties”,as it was seen to be more appropriate due to the Defendant being a government entity.

The Department of Transportation and Works wasfined, for 7 counts, $23,000 in total and the City of St. John’s, for 8 counts, $23,000 in total. Both Defendants were required to pay

$37,000 to Service NL for the purpose of developing a public education program on highway safety that addressed specifically roadside safety for members of the public and, generally, safety in construction zones. [ 27 ] The final case filed was R. v. Concord Paving Ltd . , 2012 Carswell Nfld 293 . In that case a flag person was crushed by an excavator due to visibility problems owing to a curve in the road.

Judge Skanes found that “there was not a total disregard by the defendant of its obligations as an employer.” Fines were assessed, for failing to provide traffic control procedures and equipment; $25,000 and for failing to provide information, instruction, training and supervision; $10,000.

The court recognized that “education is a significant factor in ensuring that injuries are reduced in the future” and accordingly added a further $15,000 to be paid to the Minister “for the purpose of educating employers and workers in the safe conduct of flag person’s activities.” Mitigation [ 28 ] The Company, with a strong safety culture and a spotless record under the Act since they opened their doors in 1942, has taken this incident seriously. Multiple changes have been made to operations, beyond that required by improvement orders, to ensure a similar incident does not occur.

This includes, at a combined cost of over $20,000 to the Company:

a) safe work procedure documented and workers trained;

b) controls moved to ensure operator does not need to stand in line with saw blades;

c) interlock safety mat placed in line with blades which halts operation of machine if worker steps on it;

d) barrier gates installed at in-feed press roll area;

e) out-feed conveyer belt guarded on both sides;

f) screen installed at end of rollers to protect workers from debris and

g) new 26” mirror installed at out-feed for clearer view of rear. Analysis [ 29 ] Spruce Products Limited is a smaller, family-owned company with a clear record under the Act . They were aware of their responsibilities to identify and address job hazards and did attempt to address the risk that the reverse operation of the Edger presented with training and safety measures. They fell short by relying solely on initial training and not providing a backup reminder system with a written procedure. [ 30 ] Their response, since the incident, has been exemplary.

They have met all of the required improvements, have gone beyond them and have reviewed other areas of the operation with their new awareness of risk in mind. The implementation of the safety mat which turns off the machine when a worker steps into the risk area ensures that this type of incident will never happen again. Sentencing measures to specifically deter this Company from similar future behavior are not required. [ 31 ] Workplace incidents involving fatalities routinely attract extremely high fines.

This case did not involve a fatality although it is remarkable, in light of the circumstances, that the injuries suffered were not more serious. The emphasis on general deterrence must be at the forefront of the court’s consideration, in light of the jurisprudence in this area and the need to remind corporate citizens that taking shortcuts with employee safety will be met with firm, but not crushing sanctions. [ 32 ] The question I struggled with primarily in assessing this joint recommendation was does it send the right message to employers?

The fine, as a more punitive aspect of the sentence attracting onerous costs and surcharges, is quite low. The addition of the $20,000 additional penalty, however, brings it into line with non-fatality caselaw. The “additional penalty” is clearly to be read as part of the penalty provisions. This is reinforced by the direction that any additional penalty, at s. 55.1(2), cannot extend the maximum fine beyond $250,000 – it is to be folded in.

It is more accurately an included penalty which gives the court discretion to direct funds which would otherwise go into general revenues to workplace safety and health education in the right circumstances and for the right offence. [ 33 ] The “additional penalties” option has been rightly referred to as a creative sentencing alternative. The court, depending on the statutory scheme, is often left with very narrow choices in sentencing.

With “additional penalties”, rather than simply punishing the offending corporation with a fine the court has the ability to strike a balance between punitive and restorative measures. [ 34 ] Crown counsel pointed out there are administrative penalties, pursuant to s. 53.1 of the Act , which, when levied, the government must use to educate the public on matters relating to workplace safety and health. They are apparently used to fund Safe Work Manitoba, an organization dedicated to fostering a culture of workplace safety and health throughout Manitoba. Counsel suggests Safe Work

Manitoba would be an appropriate recipient of the $20,000 additional penalty. [ 35 ] Considering the excellent safety record of this Company, their efforts to correct the problems identified, and particularly the critical importance of ongoing training and safe work procedures that was highlighted in this case I agree that additional penalties payable to Safe Work Manitoba is appropriate and the joint recommendation is fit. [ 36 ] Spruce Products Limited is fined $5000 plus costs and surcharge for breaching s. 4(1)(

a) of the Act and is ordered to pay an additional penalty of $20,000 to the government for the purpose of educating the public on matters relating to workplace safety and health through Safe Work Manitoba. __________________________ Harapiak, P.J.