Her Majesty the Queen - v. -, 2018 SKPC 3

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 003 Date: January 11, 2018 Information: 90215168 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shercom Industries Inc. Appearing: Buffy L. Rodgers For the Crown T. John Agioritis For the Accused SENTENCING DECISION M.L.

GRAY , J Background [ 1 ] The defendant has entered a guilty plea to the following count: On or about 27 th day of January, 2015, at or near Saskatoon, Saskatchewan did, being an employer at a place of employment, fail in the provision and maintenance of plan, systems of work and working environs that ensure, as far as is reasonably practicable, the health, safety and welfare of the employer’s workers as required by

Section 12(

a) of The Occupational Health and Safety Regulations , 1996 ,

resulting in the death of a worker, namely Cade Jacob Sprackman, contrary to Subsection 3-78(

g) and 3-79 of The Saskatchewan Employment Act . Facts [ 2 ] On January 27, 2015, 18 year old Cade Sprackman went to work a night shift at Shercom Industries Inc. [Shercom]. After his lunch break, he became entangled in the tail pulley or roller of one of the tire shredders. This was not noticed by any other employee; Cade himself placed two 9-1-1 calls for help. Before his co-worker James Murray found him and before emergency services could respond, the young man had been killed by the equipment on which he was working.

He had worked for the defendant for three weeks. [ 3 ] The defendant has been in the business of recycling used tires since 1993 and was the sole processor of used tires in the province. The company has been approved until November 30, 2021 as an industrial waste works facility pursuant to The Environmental Management and Protection Act , 2010 , SS 2010, c E-10.22. In this capacity, it obtains used tires and converts them to usable products such as crumb/rubber aggregate, paved rubber surfaces, paving stones, mulch, ramps, parking stops and speed bumps as well as a variety of other commercial and industrial uses.

At the time of the incident, the defendant employed 74 people; at present, there are 46 employees. In April 2016, the business sustained a significant fire from which it is rebuilding. This fire destroyed many of the employee records. The Agreed Statement of Facts indicates that the defendant “operated at a loss in 2015, the year of the incident, as well as in 2016.” No other financial information was provided. [ 4 ] On January 27, 2015, Cade Sprackman was working on a processing line; his job was to ensure that the system did not get blocked with improperly shredded tires.

The processor in question was prone to having rubber caught in various places, including under the conveyor belts and between the conveyor belts and tail pulleys. Workers reported that rubber would get caught in this fashion between one to three times an hour but sometimes more frequently than that. Cade Sprackman’s arm was caught between the tail pulley and the conveyor belt behind a large yellow guard. It is not known why Mr. Sprackman reached into this area, but it was likely to clear the line. [ 5 ] Mr. Murray was working at the other end of the same processing line and was feeding tires onto the conveyor.

He was doing so at a slower rate than usual because the machine was not working properly. At some point around the time of the incident, he realized that he could no longer see Mr. Sprackman. He gave him a minute, then walked over to the other end of the line to check on his workmate. He found Mr. Sprackman hunched, motionless and unresponsive, over the back end of the conveyor belt. He ran to the machine control panel that was 15 - 20 feet away. He hit every button before he was able to stop the equipment. Once the equipment was turned off, he ran in search of help.

He had not been trained on the particular line that he was working that night. [ 6 ] It was also agreed that between the time that Mr. Sprackman had become entangled and prior to being found by Mr. Murray, Mr. Sprackman placed two 9-1-1 calls seeking assistance. A

summary of those two 9-1-1 calls was provided to the Court. The first call was at 10:04:07 and in it Cade Sprackman screamed for help over 24 times. The call was disconnected. The second call came in at 10:13:08 with Cade asking that the operator call Shercom and have someone turn off the equipment. The call depicts Cade screaming, “I’m going to die” “I can’t move” and “help, help”over and over again. The line goes quiet at 10:18. Police arrived at 10:19. [ 7 ] Poor lighting in the outdoor work area where Cade Sprackman and James Murray were working had repeatedly been identified by workers as a problem. Mr.

Murray had not heard Mr. Sprackman’s calls for help. [ 8 ] It was agreed that Cade Sprackman received a Shercom Industries Inc. Employee Policy Handbook, that he demonstrated basic tool knowledge and had been trained on lock-out procedures, including how to clear any clogs when tires became caught in the processing system. [ 9 ] Notices of contravention had previously been given to the defendant company. These were generally remedied within 24 hours. On May 27, 2013, Shercom was served notice to remedy matters including safeguards, lock-out procedures, hard hats and high visibility clothing.

By the following day, the company installed safeguards and, two days later, trained the employees on lock-out procedures. By May 31, 2013, some emergency stop buttons had been installed.

[ 10 ] Inspectors with Occupational Health and Safety inspected Shercom on January 7, 2015. However, this inspection did not extend to the shredder involved in Cade Sprackman’s death. On January 17, 2015, ten days before the incident with which the Court is now dealing, another employee injured his thumb when it was caught in the same tail pulley which ultimately led to Mr. Sprackman’s death. He had not locked out the system before trying to remove some rubber. As a result of this injury, the line was shut down until a larger guard could be installed in that area.

Three days later, a meeting of staff, including Mr. Sprackman, was held to address lock-out procedures, proper shielding and a zero tolerance for non-compliance. The directions for a lock-out were posted on a laminated sheet. There were no outstanding notices of contravention on January 27, 2015. [ 11 ] Brendan Bruneau, the former plant manager, testified that he designed the conveyors for the production lines but did not consult any agency with expertise, respecting the safety of the design. The lines were built and safety features were installed by the defendant’s maintenance department.

Side guards were installed after the January 17, 2015 incident but shielding the moving parts made the machines difficult to maintain as these guards had to be removed before repairs or maintenance could occur. Shane Olson, Shercom’s president, wanted safety features to be “efficient.” In Mr. Bruneau’s opinion, safety was not a priority; the attitude of management was to rush to complete the work, that is, shred all the tires. [ 12 ] Reaching over the guard only was recognized as a problem after Cade Sprackman died. Mr.

Bruneau agreed that the employee handbook says that employees are to follow the rules, use common sense and report any safety issues. In his view, common sense was a big factor. He also acknowledged that his employment was terminated in October 2015 when he failed to install an equipment safety guard; this resulted in a machine going out of service at a cost of $15,000.00 - $20,000.00. His record of employment stated that he was terminated due to production slow down. [ 13 ] To his knowledge, neither he nor any other member of the management team had any Occupational Health and Safety (OH &

S) training. There was an OH & S Committee, but there were no regularly scheduled meetings. Mr. Bruneau also admitted going to a “meeting downtown” because of the number of injuries that had occurred at the plant, including back strain, cuts and broken bones. [ 14 ] Since the events of January 2015, the defendant has engaged outside consultants, and sent staff to safety training seminars. Weekly, half-hour meetings for 40 employees now are held. A safety consultant from the Heavy Construction Safety Association of Saskatchewan has spent over 200 hours at the business.

In May 2017, the defendant received its COR-Certification. This certification meets the Canadian Federation of Construction Safety national standards and proves that the company has met a minimum standard for a safety program. The defendant also obtained a safety certificate to recognize that work place injuries were reduced by 50% in 2015, in comparison to 2014. The shredder involved in the January incidents sat idle until it was replaced in November at a cost of $550,000.00.

Additional emergency stops were installed throughout the plant at each work station at a cost of $2,550.00, along with a brake cable which acts as an emergency stop on an in-feed conveyor. Elevated yard lights were installed at a cost of $4,000.00. A conveyor with a metal detector which automatically shuts down if a foreign object is noted was installed at a cost of $39,261.64. Further, heavy duty guards such as chain link fencing, metal barriers and other permanent obstacles were installed with the purpose of preventing injury.

An engineer with experience in safety and operations specific to tire recycling was hired at an annual salary of $100,000.00. A full time safety officer was also hired at a cost of $65,000.00 per year. [ 15 ] In addition, the defendant has made a donation of $25,000.00 to the Saskatchewan Safety Council’s Early Safety Training Program for the specific purpose of training youth in the Hudson Bay area where Mr. Sprackman was raised. Further, $50,000.00 is being held in trust for donation to an organization called Threads of Life which supports the victims and families of workplace accidents.

Crown Position [ 16 ] The Crown noted that the legislation has been amended to increase the maximum fine for corporations to $1.5 million in an effort to promote general deterrence. Further, the Crown submits that the aggravating circumstances in this case outweigh any mitigating factors and asks that the Court impose a fine of $750,000.00 inclusive of surcharge. Defence Position [ 17 ] Counsel for the defendant submits that a smaller fine of $150,000.00 plus a surcharge is appropriate as the defendant is a

small family owned business, and a fine of $150,000.00 plus surcharge would have a significant impact upon the company. This is particularly so in light of the $175,000.00 already expended in making the workplace safe and in charitable donations. Further, counsel argues that the higher fines are intended for larger, multinational corporations. The Law [ 18 ]

Section 12(

a) of The Occupational Health and Safety Act Regulations1996 , RRS c O-1.1, Reg 1 states: 12 The duties of an employer at a place of employment include: (

a) the provision and maintenance of plant, systems of work and working environments that ensure, as far as is reasonably practicable, the health, safety and welfare at work of the employer’s workers; [ 19 ]

Section 3-78 of the The Saskatchewan Employment Act , SS 2013 c 5-15.1 ( Act ) states: 3-78 No person shall: (

g) fail to comply with any provision of this Part or any provision of the regulations made pursuant to this Part. [ 20 ]

Section 3-79 of the Act states: 3-79

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

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

summary conviction to a fine not exceeding $500,000.

(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.

[ 21 ] Clearly, the use of the word “person” in subsection (7) includes a corporation: see The

Interpretation Act , 1995 , SS 1995, c I- 11.2. Accordingly, a corporation is subject to the maximum fine of $500,000 unless the Court is satisfied, after a consideration of all the circumstances related to s. 3-79 (9) (a-

d) that it is appropriate to impose a fine greater than $500,000. 00 with a maximum of $1,5000,000.00. [ 22 ] Sentencing is an individualized process which requires the court to consider the particular circumstances of the offence and the offender. In R v Westfair Foods Ltd. , 2005 SKPC 26 , 263 Sask R 162 [ Westfair Foods Ltd ]. Judge Whelan extensively reviewed the law of sentencing in relation to offences under the Act and set out a number of factors to be considered in determining the appropriate fine.

Although that decision pre-dated the amendments to the legislation, the factors listed remain relevant and, indeed, include the considerations now set out in s. 3-79 (9). Judge Whelan made the following observations at a para 38 of Westfair Foods Ltd. : [38] Having regard to the approach taken in Cotton Felts, 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 regulations, 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 the 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 the 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, - the employer’s response - reparations to victim or family-measures taken and expense incurred so as to prevent re-occurrence or continued illegal activity, and - a prompt admission of responsibility and timely guilty plea. [ 23 ] A number of the above listed factors are relevant to the matter before the Court:

(

i) Size of Business The defendant corporation is not a multinational company, or a national chain. Rather, it is privately owned by local residents. Although it is not large by corporate standards, it cannot be characterized as a “mom and pop” operation such as the defendants in R v J& D Sewer Services

(1984) Ltd., 2016 SKPC 125 [J & D Sewer] which had two employees in addition to the owner and R v Reimer 2012SKPC 119, 402 SaskR 214 [Reimer] which consisted of one employee who subcontracted work as needed. With 47 employees and adesignated management team, it is my view that the defendant falls in the category of a mid-sized company with some organizationalsophistication. At the time of the offence, it was the only business of its kind in Saskatchewan. (ii) Connection between profit and illegal action In the case at hand, there is some evidence that safety concerns were secondary to profit. Mr.

Bruneau testified that safety guards thatwere installed were to be “efficient” in order to minimize any down time of the equipment. Safeguards were to be affixed in a mannerthat only minimally hindered maintenance. Further, there was an emphasis on productivity as evidenced by the incentive program thatawarded bonuses when a target was exceeded without safety incident. Finally, both Mr. Bruneau and Mr.

Murray testified that safety inthe work place did not appear to be a priority for management. (iii) The gravity of the offence The circumstances of the offence are the most grave imaginable; a young man lost his life in a horrible manner. (iv) The degree of risk, extent of danger and foreseeability Given the power of the machines as described by Mr. Bruneau and the number of moving parts, the degree of risk and the great harmthat could be caused was very readily foreseeable.

It appears that reliance was placed on the common sense of employees who wereunskilled labourers and generally young males, a demographic that insurance companies, at least, recognize as notorious for theirpropensity to assume risks. Further, the onus is clearly on the employer to provide safe working conditions. (

v) Maximum penalty prescribed by statute In increasing the maximum fines, the Legislature is signalling to the Courts that penalties are to be increased to address an unacceptablelevel of workplace injuries and deaths that are occurring in this province. At para 19 of Cotton Felts Ltd., (1982) (ONCA), 2 CCC (3d) 287 (Ont CA) [Cotton Felts], the Court stated: [19] The Occupational Health and Safety Act is part of a large family of statutes creating what are known as public welfareoffences....To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations.

The amountof the fine will be determined by a complex of considerations, including the size of the company involved, the scope of the economicactivity in issue, the extent of the actual and potential harm to the public, and the maximum penalty prescribed by statute. Above all, theamount of the fine will be determined by the need to enforce regulatory standards by deterrence. (emphasis mine) (vi) Range of fines and potential impact on the business Although a number of cases, both reported and unreported, were provided to the Court, few were similar on the facts and none weredirectly on point.

With respect to the potential impact on the business, no evidence was put before the Court as to the financial status ofthe company save for the agreement that tax returns reported losses for 2015 and 2016. Counsel for the defendant also represented thatthe fine he proposed was one that would have the required effect on his client. I do note, however, that deterrence is the primaryobjective to be served and financial ramifications to the defendant are of less significance.

See: R v Canadian Consolidated Salvage Ltd.2013 ABPC 120 at para 43. (vii) Past diligence and Previous Offences Although there have been no prior convictions for violations of the Act, the defendant had been issued Notices of Contravention. Itemsnoted were rectified promptly. However, the Court cannot help but note that, in spite of numerous injuries at the workplace and in spiteof being in operation for a number of years, no concerted effort was made to improve the general safety of the work place and noconsultation ever was taken with experts in the area of safety until after Mr. Sprackman met his death.

(viii) The degree of fault (culpability) or negligence of the employer It is my view that the culpability in this case is quite high. The defendant was well aware of the potential risks presented by the type of machinery being used. Despite previous incidents, the bare minimum was done in order to prevent future risk. Even something as simple as properly improving the lighting conditions for the night shifts was not undertaken until after the fatality. (ix) The contributory negligence of another party It appears that Mr.

Sprackman reached over a shield that had been placed over the moving part that had caused an injury ten days earlier; however, a hazard remained on the same area of the same machine. Mr. Sprackman may have reached into the conveyor, contrary to instruction that he had received about dealing with blockages, but it appears that this was common practice at the work place in spite of admonitions from management. (

x) Number of breaches –isolated or continued The defendant has entered a guilty plea to one violation of the Act . As noted earlier, there had been previous notices of contravention issued; these were rectified. (xi) The employer ’s response-reparations to victim or family-measures taken and expense incurred so as to prevent re-occurrence or continued illegal activity To the credit of the defendant, it appears that every measure possible has been undertaken to ensure that their workplace is now as safe as possible.

They have done so at considerable expense and are now rebuilding after the financial losses incurred in a fire. It is clear that the death of Mr. Sprackman has shaken the shareholders of the defendant company and that they feel only regret and remorse. This has been demonstrated through the words of Mr. Olsen, the actions that have been taken to rectify the workplace, as well as the charitable donations of $75,000.00. (xii) A prompt admission of responsibility and timely guilty plea An examination of the information reveals that it was not sworn until August 8, 2016, some 18 months after the incident occurred.

The defendant appeared in court for the first time on October 18, 2016 and the matter was adjourned from time to time. A case management was held in May 2017 and continued in June. On June 22, 2017, the defendant undertook to enter a guilty plea.

Although it cannot be said that the guilty plea was entered with dispatch, it appears that conversations between counsel had been ongoing and a resolution was proposed within a reasonable time without the Crown being put to the proof of the offence. [ 24 ] As noted earlier, reference was made to many sentencing decisions but none dealt with similar offenders or similar circumstances. A number of cases involved very small organizations with one or two employees and others were large corporate entities. The following cases were decided prior to the amendments to the maximum penalty: a.

In R v Pederson, 2000 SKQB 255 , 194 Sask R 102, a worker suffocated when a trench wall collapsed. The penalty was reduced to $35,000.00 plus 15% surcharge. b. R v Reimer involved two fatalities and injuries to five people when a gas line was snagged causing a later explosion. The defendant was the only employee of the business. A fine of $28,000.00 plus surcharge was imposed. c. R v Kelvin Rowlett (unreported March 8, 2017) involved an employee of SaskPower who failed to assess the risk in a repair to a power line and resulted in another employee being electrocuted.

Fines and surcharge totalling $28,000.00 were imposed. d. R v Henry Bedry (unreported August 11, 1998) dealt with a contractor at a Potash Corporation mine. Two employees fell into a

cauldron; one died; one was severely burned. The defendant was very emotionally impacted. There was a fine of $10,000.00. The Potash Corporation was also charged as a result of the same incident and received the maximum fine of $300,000.00. e. In R v Rosin , 2005 SKQB 537 , 273 Sask R 114, the defendant had two employees and out-of-date, out-of-repair snow removal equipment for which he had received a notice of contravention to repair; he did not and an 18 year old employee died while using it. A fine of $15,000.00 and 15% surcharge was given. f.

R v Sage Well Services Ltd., 2000 SKQB 259 , 194 Sask R 65, was a case in which the defendant was vicariously liable for the failure of a field supervisor to ensure the safety of the employees. Guilty pleas were entered to two offences under the Act and fines of $25,000.00 and $1,000.00 were upheld. g. R v Agrium Inc (unreported May 28, 2012) involved a worker who died when he was struck in the head by an object falling from a crane. A total penalty of $420,000.00 ($300,000.00 plus 40% surcharge) was levied. h.

R v GoldCorp Inc. of Chaplin (unreported October 24, 2005) The employer was fined $90,000.00 plus $27,000.00 in surcharges after an employee at a salt processing plant was killed in August 2003. i. In R v Potash Corporation (unreported October 21, 2014), a total fine of $280,000.00 was imposed after a death at a mine on June 25, 2012. j. R v T & L Den Brok Enterprises Inc , 2014 SKPC 97 , involved a locally owned tire business that employed 13 people. A hydraulic jack failed, causing a spinal cord injury to an employee. The defendant had no prior violations and had been a conscientious employer until then.

Over $100,000.00 was spent to revamp the business after an outside expert was consulted. A total penalty of $30,000.00 was ordered. [ 25 ] Subsequent to the amendments to the penalty section, a number of cases have been decided, but again, none are comparable based on the information available. a. J & D Sewer involved a small company that hired two young men who died on their first day of work after being poisoned by sewer gas. When the second young man realized that the first one was in trouble, he too entered the sewer line and was overcome. No rescue equipment was available.

A fine of $30,000.00 plus 40% surcharge was imposed. b. R v Darcy Rask Construction Inc (unreported August 30, 2016) was a case where an employee was killed in September 2014 as he walked alongside a tractor that came in contact with a power line. The total penalty of $23,800.00 was a joint submission that was accepted. c. R v Cowan Bros. Transport Ltd (unreported September 21, 2017) involved the death of a worker in July 2015 after being run over by a flatbed truck that was being pushed by a bulldozer. A total penalty of $84,000.00 was levied. d.

R v Prairie Mines & Royalty ULC (unreported July 10, 2016) involved a serious injury to an employee in August 2015 when he tripped and fell 20 feet. The company was fined a total of $120,000.00. e. R v Husky Oil Operations Limited of Calgary (unreported September 18, 2017) dealt with an injury sustained by an employee on August 24, 2015 when he was hit by a truck at a sand disposal facility. The company was ordered to pay a total of $100,000.00.

[ 26 ] The primary objective of sentences in public welfare cases is deterrence. In Cotton Felts at para 23 , Justice Blair quoted an unreported decision of the Ontario Court of Appeal, R v Roussy , [1977] OJ No 1208 (QL) : [23] But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the term deterrent in its widest sense. A sentence by emphasizing community disapproval of the act, and in branding it as reprehensible has a moral or educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such

an act. Justice Blair then went on: This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare of the public. Sentence [ 27 ] In reviewing the sentencing case law, one common thread is apparent, and that is, regardless of the penalty imposed by the Court, the victims and the victims’ families can never be restored to the state of affairs that existed on the day before the offence.

Clearly, that is the fate of Cade Sprackman’s family. To them and to other families, the Court can offer only its sincere condolences. [ 28 ] The Court is left with the task of fixing a penalty that takes into account the relevant circumstances of this particular case and addresses deterrence as described earlier in this decision. The Court finds that the defendant is a mid-sized corporation with some degree of organizational sophistication; it has been in business for many years. It is my view that superficial attention was paid to employee safety.

Although the defendant responded to notices of contravention, the number of workplace injuries and the complaints from employees suggests that no true effort was made to ensure a culture of workplace safety until after the death of Cade Sprackman. Although I accept without reservation that the regret and remorse of the individuals involved in the defendant corporation is genuine, it is my view that the death of an employee could have been averted if workplace safety had been a priority.

Even though injuries were occurring, general safety was not addressed; experts in the field were not consulted. [ 29 ] The Court does recognize that, since the fatality, the defendant has gone to significant lengths and expense to ensure that such an incident does not occur again; it is unfortunate, to say the least, that these dangers were not properly addressed before a death shamed the company into action.

In particular, the Court notes that this tragedy could have been totally averted with the installation of readily accessible emergency stops at each work station; Cade Sprackman was pleading for someone to turn off the equipment when he called 9- 1-1 because that readily accessible emergency stop was not available to him. It seems elementary that there should be such protection especially when dealing with powerful machinery and knowing that people routinely did not turn off the equipment each time a blockage occurred.

These emergency stops were subsequently installed at each work station for the mere cost of $2,550.00. [ 30 ] Thus, the need for general deterrence in this case is high as it involves a foreseeable and easily preventable tragedy. Although counsel have provided the Court with many sentencing decisions, none are identical to the circumstances of the matter before me. One must be grateful that there are not a plethora of similar cases, but it does leave the Court in somewhat uncharted waters.

The employer here can be distinguished from J & D Sewer , for example, where the employer consisted of the business owner and two employees. In that case, there was no previous record of non-compliance or of similar incidents. The same is true of a number of other cases to which the court was referred. In contrast to those cases, Shercom is a mid-sized corporation operating in a major centre for over 20 years. They had received Notices of Contravention and, more importantly, had knowledge of health and safety concerns occurring on site; significantly, one incident occurred a mere ten days before the death of Mr.

Sprackman and involved the same piece of machinery and the same safety concerns. Despite these ongoing concerns and incidents, the management team did not have any OH & S training, nor were regularly scheduled OH & S meetings held. The machinery and safety features installed after incidents or Notices of Contravention were done in a piecemeal fashion, without consultation with safety experts or engineers. [ 31 ] An additional aggravating factor is the evidence that safety concerns were considered secondary to profit.

Although safeguards were installed after injuries occurred or in response to violation notices, the direction was that these were to be “efficient”

ensuring that down time was minimal and productivity optimal. Opportunity existed after every injury at the work site to consult safety engineers with respect to the over-all safety of the plant, but this was not done and one can only conclude that it was not done for financial reasons. The hiring practices at the time did not require any specific background or experience and it was common knowledge that employees reached onto conveyors to remove debris.

This was not a business pro-actively engaged in preventing dangerous situations in order to fulfill their obligation to keep employees safe. [ 32 ] An appropriate fine must reflect the egregious nature of the facts before the court. Further, it is my view that the significant increase to the maximum penalties set by the Legislature is a strong signal to the courts that penalties must be greater and that companies must not view a fine simply as another cost of doing business. It must be a substantial amount to signal to others that this type of conduct will not be tolerated: see Cotton Felts at para 22 .

Taking all of this into account, I have concluded that an appropriate fine is $300,000.00 plus the victim surcharge of $120,000.00. It is a sum which I believe sends the message that safety in the workplace must be more than a set of “laminated instructions,” common sense and managerial admonishments respecting rules; it must be the creation of an attitude and a culture where safety is paramount, particularly when powerful machinery is being deployed. _________________________ M.L. Gray, J