Her Majesty the Queen - v. -, 2021 SKPC 34

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 34 Date: June 22, 2021 Information: 991080127 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - BLS Asphalt Inc. Appearing: Buffy L. Rodgers For the Crown T. John Agioritis For the Accused SENTENCING DECISION M.R. BRASS , J INTRODUCTION [ 1 ] This is the sentencing decision following the R v BLS Asphalt Inc. [1] sentencing hearing heard on May 4, 2021.

[ 2 ] The BLS case concerns an incident where an employee was fatally injured at a crusher gravel pit near Ceylon, Saskatchewan on November 22, 2017. Mr. Troy Lucyk, employed as a loader operator for BLS Asphalt, went to assist his supervisor clear a gravel separator chute clogged with rock and sand. The supervisor was the tower operator who de-energized a separator that the chute was a part of but did not de-energize the conveyor belt that ran below the chute. Mr. Lucyk jumped up onto an uncovered frame over a moving tail pulley of the conveyor belt in his efforts to help clear the chute.

He somehow then slipped. As a result, Mr. Lucyk died by exsanguination when his leg became entangled in the tail pulley. [ 3 ] Following the investigation into this incident, BLS Asphalt was charged on Information 991080127 that on or about the 22 day of November 2017 at or near Ceylon, Saskatchewan did:

(1) Being an employer fail to provide any information, instruction, training and supervision that is necessary to protect the health and safety of workers at work as required by s. 12(

c) of The Occupational Health and Safety Regulations , 1996, resulting in the death of a worker, namely Troy Lucyk, contrary to ss. 3 - 78 (

g) and 3 - 79 of The Saskatchewan Employment Act .

(2) Being an employer, fail where reasonably practicable, to ensure that stopping devices on a machine are located in the direct view and within easy reach of the operator and readily identifiable as required by s. 135(2) of The Occupational Health and Safety Regulations, 1996 , resulting in the death of a worker, namely Troy Lucyk, contrary to ss. 3 - 78 (

g) and 3 - 79 of The Saskatchewan Employment Act .

(3) Being an employer, fail to provide an effective safeguard where a worker may contact a dangerous moving part of a machine as required by s. 137(1)(

a) of The Occupational Health and Safety Regulations, 1996 , resulting in the death of a worker, namely Troy Lucyk, contrary to ss. 3 - 78 (

g) and 3 - 79 of The Saskatchewan Employment Act . [ 4 ] On March 30, 2021, this Court gave its decision on the trial matter wherein BLS Asphalt was found guilty of committing the offences of Counts 1 and 3 outlined above. The death of Mr. Lucyk resulted from these offences. POSITION OF THE CROWN [ 5 ] The Crown highlighted the Workers’ Compensation Board Annual Report cited in the Legislative Assembly of Saskatchewan on April 9, 2013, that this province is the second worst place in Canada for workplace injuries.

The Crown also provided information that amendments to the occupational health and safety legislation that was being introduced was due to the concerns about the high rate of injuries and fatalities between 2008 and 2011 when 207 workers were killed on the job.

Saskatchewan continued to have a high fatality rate between 2015 and 2020 with 208 workplace fatalities. [ 6 ] The Crown cited Judge Whelan, ( R v Westfair Foods Ltd .) [2] who provided a comprehensive review of the sentencing law concerning occupational health and safety regulations and for providing a summarized approach to be taken in these sentencing proceedings. The Crown then followed that approach in its submissions. It is the Crown’s position that BLS Asphalt is a medium sized employer with a sophisticated corporate structure based on Saskatchewan standards.

The Crown highlighted BLS Asphalt’s web page that sets out the many economic ventures that BLS Asphalt works on in the province. [ 7 ] The Crown turned to the testimony noted in the decision that the conveyer belt was left running to avoid delays. As a result, it may be said that there was a connection between profit and the illegal actions. The Crown also pointed out that it was necessary to clear the chute a number of times and therefore the risk existed over a considerable period of time. The gravity of these offences was egregious due to the prolonged exposure to the horrific death of Mr.

Lucyk experienced by his coworkers. That is, his coworkers attempted to cut Mr. Lucyk loose and held him up for some 45 minutes before he succumbed to his injuries.

By not providing information, instruction, training and supervision on how to safely clear a clogged chute and by not safeguarding a tail pulley, it was foreseeable that there was a risk of serious injury or death. [ 8 ] The Crown cited Judge Jackson in R v Norwood Developments Ltd . and Capella Cabinetry Inc . [3] , where he stated at paragraph 21: [21] …as pointed out by the Crown counsel, many fines 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.

[ 9 ] The Crown therefore submits that the similar offenders in similar circumstances are ones in R v Shercom Industries Inc. [4] , and R v Langenburg Redi-Mix Ltd . [5] cases. The Crown indicated that the defence cases that BLS Asphalt refers to dealt with very small “mom and pop” or individually owned companies. As well, none of the cases BLS Asphalt cited are on point and are distinguishable due to the varying circumstances of the incident and the offenders.

The Crown submits that BLS Asphalt has not provided evidence to show that it is not able to pay fines in the range that the Shercom Industries and Langenburg Redi-Mix cases set out. [ 10 ] Therefore, it is the Crown’s position that the range of fines for cases involving a fatality in Saskatchewan is currently between $10,000.00 to $560,000.00 inclusive of the victim fine surcharge (VFS). The Crown seeks a fine in the amount of $200,000.00 plus the VFS of $80,000.00 on each count for which BLS Asphalt was convicted. The Crown therefore seeks a global fine of $560,000.00.

POSITION OF THE DEFENCE [ 11 ] BLS Asphalt categorized itself as a small business. It is BLS Asphalt’s position that the sentence applicable to corporations such as itself in circumstances such as those at issue is between $20,000.00 and $126,000.00 inclusive of the 40% VFS.

BLS Asphalt indicates that the size of its business impacts its ability to pay a fine such as that imposed in the Langenburg Redi-Mix Ltd. case. [ 12 ] BLS Asphalt relies on the decision in R v Carrier Forest Products Ltd . , [6] for the position that the increase in the maximum fine was not intended to increase all fines imposed under the Act . Rather, BLS Asphalt submitted that the increase in the maximum fine was intended to ensure that the largest and worst offenders receive a large enough fine to effect deterrence.

BLS Asphalt does not compare to such companies as in the Langenburg Redi-Mix Ltd. case. [ 13 ] BLS Asphalt then submitted a series of cases to support the level of the fine that it indicates are applicable in this case. In reviewing these cases, the court noted that most of the cases dealt with situations where the offending company provided guilty pleas and/or where the fine amount was the result of joint submissions.

BLS Asphalt also submitted that sentences issued prior to the amendment of the legislation may be considered for the purposes of seeking parity and fairness. [7] [ 14 ] BLS Asphalt indicated that it recognized the gravity of the offence and the dangerous nature of the gravel crushing operations. Again, BLS Asphalt points to Mr. Lucyk’s behaviour on the day of the incident that was unforeseeable by the company. BLS Asphalt requests the court consider its submission about Mr.

Lucyk’s behaviour when determining the appropriate fine. [ 15 ] BLS Asphalt reminded the court of its efforts to ensure a safe work environment that was evidenced in the COR Certification from 2007 onwards.

BLS Asphalt indicates further that it is a mitigating factor that it has never been previously charged with any offences under the Act . [ 16 ] BLS Asphalt therefore submitted that a fine in the amount of $30,357.00 for each count plus the 40% surcharge, for a total penalty of $85,000.00 is proportionate and appropriate in the light of the following factors: requirements of the Act , the range of fines applied to similar offenders in similar circumstances and, BLS Asphalt’s remorse, clear safety record, prompt and decisive response to the incident and support provided to Mr. Lucyk’s child and family.

LEGISLATION [ 17 ] The relevant penalty provisions under

section 3 - 79 of The Saskatchewan Employment Act , [8] are the following:

s. 3-79 (applicable sections cited):

(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. CASE LAW [ 18 ] The Court recognizes that the death of Mr. Lucyk has been a major loss to his family and a very traumatic event for his coworkers and indeed for the owners of BLS Asphalt. No fine amount will ever bring Mr. Lucyk back.

The Court knows that the fine to be imposed is not meant to represent retribution. [9] However, general deterrence is the paramount factor taken into consideration in arriving at an appropriate sentence. [10] Furthermore, the objective of general deterrence is a consideration taken that assures the public that basic rules are established and enforced to protect the physical, economic and social welfare of the public. [11] [ 19 ] This Court relies on the decision in the Westfair Foods Ltd. [12] case where Whelan J. outlined relevant factors to consider when determining an appropriate sentence for occupational health and safety (OHS) cases.

At paragraph 38, she provided the following guidance: [38] Having regard to the approach taken in Cotton Felts Ltd. , supra [ sic ], 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 employees and the general public. ii. The sentencing principles 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. [ 20 ] This

summary of relevant factors to consider is very useful and will be applied in the current case. [ 21 ] As well, there are a number of apparently non-joint submission cases that assist this Court in finding the appropriate sentence in this case. These cases include the following: - Langenburg Redi-Mix Ltd. – a loader operator was fatally injured when he was crushed between the loader and a truck when the loader rolled back.

The company was charged with failing to provide an adequate safe work procedure and for failing to ensure that the work was sufficiently and competently supervised, both resulting in the death of the operator. The company was part of a large national company. They received $35 million from the Government of Saskatchewan for services in the year of the incident. The failure to provide proper supervision was found to be connected to the maximation of profits. The degree of risk and the extent of the danger and foreseeability in this failure was deemed to be high.

The company completed its own investigation and developed safe work procedures in response. The company did not make any reparations to the victim’s family and also did not enter guilty pleas. No mitigating factors were given for their plea. The company was fined $200,000.00 for each charge plus a $160,000.00 surcharge, totaling $560,000.00. - Shercom Industries Inc . – An employee was on the job for only three weeks when he became entangled in a tail pulley and died from his horrific injuries.

Shercom is a privately owned mid-sized company with some organizational sophistication that had 74 employees at the time of the incident and 46 employees and a management team at the time of sentencing. There was some evidence that profit took priority over safety. The company relied on employees to exercise common sense to work around the limited safeguards. The employee reached behind the safeguard, despite instructions on how to deal with blockages. Judge Gray noted that simply providing better lighting would have helped but this was not done.

She also noted that there were the same safety concerns raised with the same machine just 10 days previously. There was a high degree of culpability in light of this previous incident. The company took many steps at great expense after the incident to make the workplace safer and made charitable donations of $75,000.00. Shercom entered guilty pleas and was fined $300,000.00. plus surcharge of $120,000.00, totaling $420,000.00. - R v Shawcor Ltd ., [13] (OHS News Release – not clarified if was a joint submission) – a worker was injured after becoming trapped in a piece of machinery.

The company provided a guilty plea for failing to provide an effective safeguard where a worker may come in contact with a dangerous moving part of a machine resulting in a serious injury to a worker. The company was fined $130,000.00. plus $52,000.00 surcharge, totaling $182,000.00. - R v Inland Steel Products Ltd ., [14] (OHS News Release – not clarified if was a joint submission) – a worker was fatally injured when a piece of machinery he was working on came in contact with a power line.

The company pled guilty for failing to ensure that a worker was trained in all matters necessary to protect the health and safety of a worker, resulting in the death of the worker. The company was fined $96,000.00 plus $36,000.00 surcharge, totaling $126,000.00. - R v Basic Truck and Trailer Repair Inc ., [15] – an employee with thirty years of experience as a mechanic was working on a gravel truck box when the company’s commonly used blocking system failed when the steel band broke, causing the box to quickly descend on the employee and fatally injured him.

The company was small and there was no evidence that it was sophisticated. However, the company had brought in over $1 million in revenue annually. They had the means to pay a fine without being put into bankruptcy. The gravity of the offence was high due to the death that resulted from the high-risk blocking system where the consequences were foreseeable and preventable. The company did not have previous OHS citations or convictions. There was no contributory negligence. The company did not take any steps post-incident to improve safety, although it did enter a timely guilty plea.

The company was fined $65,000.00 plus $26,000.00 surcharge, totaling $91,000.00. - R v Norwood Development Ltd. and Capella Cabinetry Inc. , [16] – A Capella employee fell from a ladder used after Norwood removed the temporary staircase within the house. He suffered a head injury and died. Norwood was a one-person company that showed a $300,000.00 financial increase between 2019 and 2020. Capella had on average six employees with a financial loss in 2019 but $110,000.00 increase in 2020. The gravity of the offence was high due to the death that resulted.

The risk and danger associated with the removal of the staircase coupled with no enforcement by Capella to require employees to wear personal protection equipment was foreseeable. In that case the employee was not wearing a hardhat. Neither company had previous OHS citations or convictions. There was no contributory negligence. There was no evidence that either company took steps to improve safety, although both companies entered guilty pleas.

Norwood was fined $65,000.00 plus $26,000.00 surcharge totaling $91,000.00 and Cappella was fined $40,000.00 plus $16,000.00 surcharge, totaling $56,000.00 with a grand total of all fines and surcharges being $147,000.00.

- R v Carrier Forest Products Ltd . , [17] – An employee was closing the hood of a repaired wood chipper that was not locked out and without a proximity switch when it malfunctioned and threw the hood, striking and fatally injuring the employee. Carrier Forest was a large mid-sized BC company with 180 employees, with 136 working at the sawmill in Saskatchewan. The company had policies that all employees were to follow, including those on lockout procedures. There were no previous citations or convictions.

The company acknowledged that a proximity switch would have prevented the incident and had one installed afterwards. The company also spent $430,000.00 to provide counseling to employees, provided more OHS training, and made safety modifications. They also made a gratuitous payment to the employee’s spouse. The Crown’s request for a fine totaling $700,000.00 was rejected in light of the steps the company took post-incident and the fact that such a fine would put the company out of business and essentially collapse the economy of the Saskatchewan town in which the company had business.

The company was fined $62,000.00 plus $25,500.00 surcharge, totaling $87,500.00. - R v Fire Sand Real Estate Ltd ., [18] – the company was a very small family owned business with one employee and co-owner of Fire Sand Real Estate Ltd. The company was part of a larger more sophisticated family owned enterprise. A crane operator was hired to unload a large piece of equipment. There were tests and procedures that needed to be done before the crane could be used. The co- owner was informed three times of this information but refused each time to follow these directions due to the delay and costs that would result.

The co-owner did not warn the operator when the crane started to move. As a result, the crane operator was seriously injured when the crane toppled. There were no prior convictions associated to this company. There was a lack of remorse due to co-owner’s belief that workers were responsible for their own safety. However, steps were taken to train employees on working with and around cranes. Fire Sand Real Estate Ltd. pled guilty, but it was neutralized when the defendant disputed certain factors.

The company was fined $60,000.00 plus $24,000.00 surcharge, totaling $84,000.00. - R v Sommer Green Forages [19] (OHS News Release – not clarified if was a joint submission) – a worker was fatally injured when he became entangled in a baler while cleaning it. The company pled guilty for failing to ensure a machine was locked out and remained locked out during the worker’s work on the machine, resulting in the worker’s death.

The company was fined $50,000.00 plus $20,000.00 surcharge, totaling $70,000.00. - R v Alsport Sales Inc. [20] (OHS News Release – not clarified if was a joint submission) – a worker was fatally injured after being thrown from a snowmobile. The company pled guilty for failing to ensure a worker was trained in all matters necessary to protect the health and safety of workers, resulting in the death of a worker.

The company was fined $25,000.00 plus $10,000.00 surcharge, totaling $35,000.00. - R v T & L Den Brok Enterprises Inc ., [21] (prior to the fine increase) – An employee was seriously injured and left paralyzed from the waist down when a hydraulic jack failed when he was changing a tractor tire. The company had thirteen employees and generated about $325,000.00 annually. Since blocking tires was standard industry practice, it was negligent in this case not to do that. The gravity of the offence was high due to the serious injury.

There were no previous convictions but there was a lack of past diligence to block tires. Liability was found to be on the employer despite the employee being in the incorrect position. The company pled guilty. The company also did a complete overhaul of its operations including policies and training for employees which cost $100,000.00. The company was fined $22,000.00 plus $8,800.00 surcharge, totaling $30,200.00. - R v J & D Sewer Services

(1984) Ltd ., [22] – two young workers succumbed to hydrogen sulfide (H 2

S) when they ended up in a manhole. Both men died. J & D was a very small company owned and operated by one owner. There was high culpability and foreseeability since H 2 S was known to be dangerous and present in sewer lines. There was no equipment provided to prevent the incident. The owner was highly experienced but provided no training or information to the workers about H 2 S. The company had limited means to pay a fine. It had not done any work since the incident. The owner was sincerely remorseful, offered an apology and entered guilty pleas.

The company was fined $15,000.00 on both charges plus $12,000.00 surcharge, totaling $27,000.00. - R v Reimer [23] (prior to fine increase) – a very small construction / demolition business that was operated for a number of years by the owner who occasionally hired helpers. During a demolition job, a catastrophic explosion was caused when the owner snagged a live gas line. The gravity of the offence was high with two helpers being killed and four people, including the owner, being seriously injured.

The owner had worked around live gas lines before, so his lack of care given the foreseeability of the risk made him highly culpable. There was no contributory negligence. Profits from the venture were only $2,000.00 so the owner was not motivated by profit. There was a limited ability to pay a large fine as it would destroy the business. There was no evidence that reparations to the families were made or that steps were taken to prevent this incident from reoccurring. The company was fined $10,000.00 plus $4,000.00 surcharge on both counts, totaling $28,000.00. ANALYSIS [ 22 ] At trial, BLS Asphalt owner Mr.

Jonas Short informed the court that there were about 60 to 70 employees in 2017 but that there were around 45 employees at the time of the incident. His family had built up this company from 1999 when there were only around 10 employees. BLS Asphalt indicates that it now employs 32 employees in its peak summer season when they perform asphalt paving, site work aggregate and now snow removal services in the Regina area of Saskatchewan. It is fair to say that BLS Asphalt was on the lower end of a mid-sized business in 2017. It is not a small “mom and pop” business with just a couple of employees.

Nor is it a huge international conglomerate with thousands of employees, or even a business with a hundred employees.

[ 23 ] The Court acknowledges that the Government of Saskatchewan raised the level of fines to $1,500,000.00 for offences committed under the Act while they did not specify minimum fines. The Court also acknowledges that discussions related to the raising of fines were held in the context of recognizing that Saskatchewan has one of the highest incidents of work place injuries and deaths in the country and also in recognizing that the province has also attracted major interprovincial and international businesses which may have deeper pockets.

These two factors do not stand alone and are not an exhaustive list of considerations for amending the legislation. The amendments to the legislation provide a means for courts to appropriately sentence a competitive company who partakes in the Saskatchewan economy but fails to adhere to health and safety requirements meant to protect workers. It is a signal to the courts to impose increased penalties if the circumstances warrant such sentences.

Fines are not meant to be simply the cost of doing business in Saskatchewan but are also meant to ensure that companies fulfil the province’s goals to provide safe work places and to deter companies from failing to do so.

In the present case, the fine must be high enough to deter a company from failing to spend the money to install a safeguard or to implement protocols and procedures on how to safely clear a clogged chute. [ 24 ] The Crown cited information from BLS Asphalt’s web page wherein the level of sophistication within the organization that includes a number of levels of employees, supervisors and owners is described. The number of projects BLS Asphalt works on was also described so it can be seen that BLS Asphalt works on many different projects, some small and some large.

The web page indicated that BLS Asphalt’s services include “paving, site work and excavation, aggregate and snow removal.” [24] In light of the finding that BLS Asphalt employees left machinery running in order to clean the chute without incurring the cost of stopping the machinery to do it safely, it is observed that there was a connection between the profit that BLS Asphalt obtained and the illegal actions. This is an aggravating factor. [ 25 ] The gravity of the offence was high in light of the fact that Mr. Lucyk died as a result of the two offences of which BLS Asphalt was found guilty.

That is, had BLS Asphalt installed a safeguard over the tail pulley or had provided information, instruction, training or supervision on the clearing of the chute, Mr. Lucyk would not have died. The Court understands that BLS Asphalt has argued to place some of the blame at the feet of Mr. Lucyk for entering a no-go zone to provide unrequested assistance to his supervisor by jumping up on an uncovered tail pulley. [ 26 ] The Court sees however, that Mr.

Lucyk’s behaviour underscored the danger left open by BLS Asphalt’s failure to install a safeguard over that open tail pulley and for failing to provide a safe means to clean a clogged chute. The Court was shown that the other two tail pulleys on site had safeguards installed and it was not explained why this third one did not. The Court also was informed that other workers worked in or near the no-go zone and also cleared the chute in the same manner utilized by Mr. Lucyk.

Other workers had the fortune to not be injured or fatally injured by the dangers posed by the offences that BLS Asphalt committed. [ 27 ] The maximum penalty under the legislation is $1,500,000.00. For matters where no joint submissions were obviously provided to the court, the range of fines is between $30,200.00 and $420,000.00 for small to medium sized companies. BLS Asphalt has the means to pay a fine that is proportionate to the size of the company and the degree of culpability it has regarding the two offences on which it was found guilty.

A proportionate fine will not drive BLS Asphalt into closure. [ 28 ] Prior to the incident that resulted in the death of Mr. Lucyk, BLS Asphalt received a grade of 95% during a Heavy Construction Safety Association of Saskatchewan Inc. (HCSA) internal audit and had a safety program “COR certified” by HCSA since 2007. Aside from the contraventions that were issued as a result of the investigation of the incident, no other offences existed. However, following the incident, BLS Asphalt received Notices of Contraventions for a number of items. The site was shut down until those Contraventions were addressed.

BLS Asphalt responded with a Remedial Action Plan and fulfilled it within a month of receiving the Notice. [ 29 ] BLS Asphalt was solely responsible for ensuring that machinery with moving parts that may come in contact with workers had safeguards. BLS Asphalt was also responsible to provide the information, instruction, training or supervision on the clearing of the chute. As a result of these two factors, BLS Asphalt had a high degree of culpability. The Court acknowledges that Mr.

Lucyk had some 10 years’ experience in the industry, which distinguishes this case from the Shercom Industries case where the employee in that case was only on the job for three weeks. However, although no prior incidents occurred in the location of the incident under consideration here, as noted above, other workers had the fortune to not be injured by the open tail pulley even when the risk still existed. [ 30 ] The Court heard that the Ceylon site had been set up two weeks prior to the incident.

No evidence was provided on whether the equipment involved in the incident was set up in another location or how long such equipment had been in use without a safeguard and without any information, instruction, training or supervision on the clearing of the chute. However, witnesses did inform the Court that it was necessary to clear the chute numerous times a day or week, depending on the conditions.

From this information, it can be seen that the breach was not an isolated situation and continued for at least the two weeks when the Ceylon site was up and running. [ 31 ] BLS Asphalt provided some financial support to Mr. Lucyk’s family, including paying for the reception and luncheon at Mr.

Lucyk’s funeral and providing a substantial financial gift to the mother of his child with the intention of such moneys to go to his daughter. This ex gratia payment was made in addition to life insurance benefits payable to Mr. Lucyk through his employment and in addition to any benefits Mr. Lucyk’s dependents may have received from the Workers’ Compensation Board. [ 32 ] BLS Asphalt did not provide a guilty plea in this situation. BLS Asphalt had a right to have their case heard and it is not an aggravating factor for having done so.

At the same time, BLS Asphalt does not get the benefit of the mitigating effect that a guilty plea generates. CONCLUSION [ 33 ] The Court acknowledges that no fine amount will bring solace to Mr. Lucyk’s family and friends. The Court offers its condolences to them. [ 34 ] In light of the factors taken into consideration as outlined above, the Court finds that the appropriate fine in this situation is $125,000.00 plus a surcharge of $50,000.00 for each count, totaling a global sentence of $350,000.00.

This fine amount addresses general and specific deterrence to BLS Asphalt and to other employers in the same industry. _________________________ M.R. Brass, J