HER MAJESTY THE QUEEN - v. -, 2021 NBPC 1

2021NBPC01 05030411 PROVINCIAL COURT PROVINCE OF NEW BRUNSWICK JUDICIAL DISTRICT OF BATHURST BETWEEN: HER MAJESTY THE QUEEN - and - DISTRICT SCOLAIRE FRANCOPHONE NORD-EST BEFORE: Judge Brigitte Sivret AT: Bathurst, New Brunswick DATE OF DECISION: December 4, 2020 APPEARANCES: René Dumaresq, for Her Majesty the Queen André Richard, for the defence [TRANSLATION]

SENTENCING DECISION 1. On June 26, 2020, District scolaire francophone Nord-Est (hereinafter “the School District”) pleaded guilty to the offence offailing to provide a fall-protection system when an employee is in an unguarded work area that is 3 metres or more above the nearestpermanent safe level, contrary to s. 47(1) of the New Brunswick Occupational Health and Safety Act (hereinafter “the Act”). 2. On the same day, the Crown withdrew a second count charging the School District with failing to establish an occupationalhealth and safety program as required under s. 8.1(1) of the Act. 3.

This matter stems from a fatal workplace accident that took place on April 12, 2019, while two School District employees weremaking repairs to the ventilation system on the roof of the École Cité de l’Amitié in Bathurst. The facts of the accident are not in disputeand can be summarized as follows: 4. Sylvio St-Pierre, a certified building electrician, and Jules Hachey, a maintenance employee, both working for the SchoolDistrict, had to change a motor in the ventilation system on the roof of the school. 5. After installing the new motor, Mr.

St-Pierre took a few steps backwards to check that the motor was installed level. Steppingback, Mr. St-Pierre fell off the roof, hit some picnic tables that were resting against the wall of the school and landed on the ground. Hedied of his injuries. The roof was more than 3 metres above the ground. 6. At the time of the accident, Mr. St-Pierre was not wearing a full body harness, there was no guardrail or anchor point installed onthe roof and the School District had no occupational health and safety program as required by the Act. 7.

What must now be determined is the just and appropriate sentence to be imposed on the School District for the offencecommitted, to which it has pleaded guilty. 8. The Crown and defence agree that the imposition of a fine is an appropriate sentence in this case. However, the parties differ onthe amount of the fine.

The Crown submits that a $125,000 fine is reasonable and in parity with the recent case law for this type ofoffence, whereas defence counsel thinks a $70,000 fine is a reasonable and appropriate sentence considering the remorse that has beenexpressed and the corrective action taken by the School District since the accident in April 2019. 9. The parties also take different positions on whether it is appropriate to consider the failure to have an occupational health andsafety program as required by s. 8.1(1) of the Act. 10.

The Crown argues, inter alia, that if the School District had developed and implemented such a program, employeesresponsible for performing work like the work done by Mr. St-Pierre and Mr. Hachey on April 12, 2019, would have known that it wasnecessary to wear a full body harness and that the presence of a guardrail and/or an anchor point on the roof was essential beforeundertaking this kind of work. In the Crown’s view, there is a causal connection between the lack of a job safety training program foremployees of the School District and the accident that cost Mr. St-Pierre his life on April 12, 2019. 11.

Defence counsel, on the other hand, argues forcefully that his client pleaded guilty to failing to provide a fall-protectionsystem and that the Court should look at the facts surrounding that offence. The defence further argues that the withdrawal of the countrelating to the lack of a health and safety program puts that issue to rest and, accordingly, the School District should be punished only forthe offence remaining before the Court. ANALYSIS 12. R. v.

Cotton Felts Ltd., (ON CA) out of the Court of Appeal for Ontario continues to be the leading caseon the approach to be taken to sentencing for occupational health and safety offences involving corporate entities. In that case, the Court

of Appeal for Ontario confirms that the main objective to be achieved is deterrence. The Court also listed the following factors asrelevant considerations when it comes to fashioning a just and appropriate sentence: - The size of the company; - The scope of the company’s economic activity; - The extent of actual and potential harm to the public, and; - The maximum penalty prescribed by the Act. The Court adds that where the sentence being imposed is a fine, the amount of the fine should be substantial enough to achievecompliance with the spirit of the law through deterrence. 13. Recently, in R. v.

The Royal Canadian Mounted Police, 2018 NBPC 1 , Jackson, P.C.J. of this Court went over theprimary objectives and factors to be considered in sentencing the Royal Canadian Mounted Police after convicting it of an offence underthe Canada Labour Code. 14. In that decision, Jackson, P.C.J. also echoes the words of Derrick, P.C.J. of the Provincial Court of Nova Scotia in R. v. NovaScotia Power Inc., 2008 NSPC 72, who reviewed the principles applicable to sentencing a governmental organization for the breach ofan occupational health and safety regulation.

He notes the following principles: - Specific and general deterrence; - Retribution, and; - Rehabilitation. 15. Jackson, P.C.J. then confirms the four factors outlined in Cotton Felts, supra, and adds that the principles of proportionality,parity and restraint are also relevant, and I quote: “Other principles of sentencing to be considered in determining a just and appropriate sentence are proportionality, parity andrestraint.

The sentence should be proportionate to the moral blameworthiness of the offender, similar to sentences imposed onsimilarly positioned offenders for similar offenses and be no greater than is required to meet the objectives of sentencing. R. v.O’Regan Chevrolet Cadillac Ltd. 2010 NSPC 68. See R. v. The Royal Canadian Mounted Police, 2018 NBPC 1 , at para.18.” DETERRENCE 16. In this case, the parties agreed that the objective of general deterrence should be the sentencing priority here. 17.

It is therefore necessary, in pursuit of deterrence, to analyze all of the relevant factors in order to fully appreciate thecircumstances of the School District and the circumstances surrounding the commission of the offence. 18. The School District has approximately 2,000 employees, including a team of 25 to 35 maintenance employees for 34 schools.It is one of the largest employers in northeastern New Brunswick. It is a government entity whose main functions are schoolmanagement and public education in that part of the province.

The School District is not involved in industrial or commercial activitiesand does not bring in any business income. The School District has no prior convictions. 19. At the time of the accident, Mr. St-Pierre was a member of the maintenance team. He was making some repairs on the roofof a school managed by the School District. The actual harm caused by the accident is serious and irreparable. Mr. St-Pierre’s death is, infact, the most serious consequence an employee can suffer following a workplace accident. The School District acknowledges theseriousness of the harm caused and the impact on Mr.

St-Pierre’s family and co-workers. 20. It seems clear to me that the type of repair Mr. St-Pierre and Mr. Hachey made on April 12, 2019, is likely to be repeatedfairly often. The School District manages 34 schools, so it is conceivable that the 25 to 35 maintenance employees for those schools arebusy with all sorts of manual work. Those schools are public places that host hundreds of people each day, most of whom are students,

teachers, administrators, maintenance workers, bus drivers and parents. In my view, the more a workplace is frequented by large numbers of members of the public, the safer it should be in order to protect those people from any potential accident. 21 . In this instance, the School District is in violation of the Act that is intended to protect workers in their workplace. The Act is part of a statutory framework meant to promote the wellness and safety of employees working in an evolving, modern society.

The penalty for failing to comply with that statutory framework is generally a fine substantial enough to achieve the objective of deterrence. Accordingly, the fine must not be perceived as a mere operating expense that the offending corporate entity will easily absorb. RETRIBUTION 22 . The Province of New Brunswick has amended the Act in recent years to increase the amount of the maximum fine an offending employer may face in the event of an offence under s. 47(1) of the Act. In 2008, the maximum amount went from $50,000 to $250,000.

It seems to me that the legislator wanted to reinforce how important it is for every employer subject to the Act to meet and comply with the requirements of the Act. The offending employer is now subject to much higher fines than before and the Court must respect the punitive nature of the law. REHABILITATION 23 . The law provides that the Court may issue a probation order in respect of the School District. The purpose of such an order would be to compel the offending employer to take remedial action to meet the statutory requirements. 24 .

In this case, the Crown withdrew its reuqest for such an order, declaring itself satisfied that the School District has already taken and implemented the necessary remedial action to meet occupational health and safety standards for its employees. I concur with its position. PARITY AND DEFERENCE 25 . In terms of parity, the Court must consider the relevant case law on occupational health and safety. To that end, the parties introduced a number of cases supporting their respective recommendations. 26 .

The Crown contends that when there is a death following a breach of the requirements of the Act, a fine in the amount of $125,000 should be regarded as the minimum fine to be considered. It relies on some recent unreported cases from this Court, such as: - R. v. Wal Mart Corp. , 2012 NBPC : In 2010, a young employee was using a floor polisher when the polisher’s defective extension [cord] came into contact with the water on the floor and electrocuted the 17-year-old employee. Wal Mart Corp. pleaded guilty and was fined $100,000 plus a victim services surcharge. - R. v. J.D.

Irving , 2000 NSPC : On February 3, 2000, an employee died after a fall. J.D. Irving was charged with failing to ensure the employee was wearing fall protection equipment. M ac Donald, J. imposed a $125,000 fine. - R . v . Groupe Savoie , 2019 NBPC : On February 12, 2019, an employee’s leg got caught in a conveyor due to a missing panel. The employee died of his injuries. Bernard, J. accepted the joint submission and imposed a $125,000 fine. - R. v.

Crown (DTI) , 2018 NBPC : On March 27, 2018, the New Brunswick Department of Transportation and Infrastructure was doing some work on the covered bridge over the Hammond River when an excavator went through the floor of the bridge and fell to the ground. There were no injuries. Following a joint submission, the judge imposed an $80,000 fine as well as a 30-day probation order.

- R. v. Irving Oil Refining G.P. , 2020 NBPC : On April 15, 2020, following an explosion at the Saint John refinery, Irving pleaded guilty to failing to take every reasonable precaution having neglected to follow an American standard not cited in the Occupational Health and Safety Act . Irving Oil Refining had a health and safety program and adhered to certain components of the American Petroleum Institute, but they were not fully implemented. The judge accepted the joint submission and imposed a $200,000 fine. - R. v.

DTI , 2020 NBPC : In July 2020, the New Brunswick Department of Transportation and Infrastructure was sentenced to pay a $125,000 fine for failing to provide a guardrail at the open sides and ends of a bridge. DTI does construction work and the incident involved the team working on bridge maintenance. DTI had one prior conviction for a serious incident (death) that had taken place only three years before when an excavator fell through a bridge. Both offences related to the maintenance of a bridge.

At the time of the first offence, DTI had agreed to make an $80,000 contribution to the University of New Brunswick, in addition to submitting to administrative action. 27 . Defence counsel submits that under the principle of parity, the Court should impose a sentence similar to those imposed for similar offences committed under similar circumstances. According to the defence, the sentences imposed on employers for health and safety offences where a death has occurred range from $45,000 to $125,000. In addition to the cases already cited by the Crown, he cites the following: - R. v.

Lead Structural Formwork Ltd. (2019) : The employer pleaded guilty to a charge of failing to provide a fall-protection system. The charge stemmed from a fatal accident on January 30, 2017. A supervisor was working near an unguarded edge on the fourth floor of a building under construction when fell to his death. He had received fall-protection training and was wearing a full body harness at the time of the accident, but no anchor was available. The employer was fined $50,000.

The same day, Lead Structural was convicted and sentenced to $10,000 for an incident that took place only three weeks after the fatal accident, when a crane struck an employee in the jaw. - R. v. J.D. Irving Limited (2019) : The employer pleaded guilty and was sentenced to pay an $80,000 fine for failing to ensure that a piece of equipment was properly locked out. The charge stemmed from a fatal accident at the J.D. Irving Limited sawmill in Sussex.

In fashioning the sentence, the judge took into account machinery upgrades, employee training and the hiring of three supervisors to oversee the work area where the accident took place. J.D. Irving had two prior convictions. This was the third charge against J.D. Irving Limited. - R. v. Sun Gro Horticulture Canada Ltd. (2017) : The employee died while he was changing the position of a machine in a plant. The employer was sentenced to pay a $50,000 fine. - R. v.

The Pepsi Bottling Group and Leon Marcel LeBlanc (2014) : While an employee was removing a large piece of metal that was bolted to the floor with the intention of replacing it, the piece of metal went flying and struck another employee on the head, killing him. This large corporation, Pepsi, was sentenced to pay a $45,000 fine. - R. v. AV Cell Inc. and Val Landry & Son (Roofing and Sheet Metal Working) LTD. (2013) : Three employees fell about 10.6 metres (35 feet) to a concrete floor when a wooden catwalk they were using to reach part of a ceiling gave way.

One employee died and the other two were seriously injured. The employer pleaded guilty for failing to take every reasonable precaution to ensure the health and safety of employees in its place of employment. Two companies were involved: one was sentenced to pay a $60,000 fine and the other a $5,000 fine. 28 . Although the principle of parity remains a consideration recognized by the courts, it is important to remember that when it comes to fashioning a sentence, previous rulings are merely guides.

Attaching too much importance to them should be avoided as it could result in an incomplete analysis of the relevant factors and the particularities of each case. PROPORTIONALITY 29 . A sentence must be proportionate to the degree of moral blameworthiness of the offender. In this case, the School District was responsible for providing a fall-protection system. It would have taken very little effort and investment on the part of the School District to supply Mr. St-Pierre and Mr. Hachey with harnesses and to install anchors points on the roof of the school. The School District is solely responsible for Mr.

St-Pierre’s death on April 12, 2019. No contributory liability on the part of others was identified in this case. 30 . Finally, the amount of the fine should also reflect any relevant aggravating and mitigating circumstances relating to the offence committed and the circumstances of the offending employer. MITIGATING CIRCUMSTANCES 31 . The School District pleaded guilty, thereby avoiding a trial that would undoubtedly have been painful for the victim’s loved

ones and co-workers. It accepts full responsibility for the accident and has clearly shown its commitment to improving workplace safety conditions for its employees. 32 . The courts have recognized that the employer’s post-accident conduct and attitude can be considered as mitigating factors where they clearly express remorse and genuine regret. In this case, the School District’s conduct after the accident on April 12, 2019, was almost irreproachable. It quickly and voluntarily reported the accident to the authorities and cooperated fully with the WorkSafeNB investigation. 33 .

The School District acknowledged the seriousness of this accident. It expressed deep regret and offered its condolences to Mr. St-Pierre’s family during the court hearing. In addition, the director of administrative and financial services for the School District attended every appearance before the Court from the time the charges were laid. 34 . An internal investigation was also conducted, a list of recommendations was submitted, and action was taken to meet the requirements of the Act.

The School District bought personal protective equipment for the use of its employees and hired an occupational health and safety coordinator. In addition, a number of training sessions were held for maintenance employees. 35 . According to the School District, the remedial action taken to avoid further accidents, including occupational health and safety program improvements, go beyond the statutory requirements. 36 . In R. v.

The Royal Canadian Mounted Police , supra , Jackson, P.C.J. recognized the principle that it is proper for the Court to take into consideration post-accident action that goes beyond what the law requires. That is effectively the case here. 37 . The School District not only developed a training program as required by law, but it also hired an occupational health and safety coordinator. It invested over $125,000.00 in training, equipment and presentations, in addition to the annual cost for the coordinator, which is $76,000.00.

I therefore regard the action taken by the School District that goes beyond what is required by law as a mitigating factor in this instance. 38 . It is also my view that the existence of these mitigating factors makes it unnecessary for the Court to consider the principles of specific deterrence and rehabilitation of the School District. In fact, this is the reason the Crown withdrew its request for a probation order against the School District. AGGRAVATING CIRCUMSTANCES 39 . The fact that the accident led to Mr. St-Pierre’s death is an aggravating factor.

The seriousness of the harm caused is at the highest level. 40 . The fact that the employer is a governmental organization with public resources and funding is an aggravating factor. It is inconceivable that such a sophisticated organization with over 2,000 employees would avoid its statutory duties with respect to occupational health and safety. 41 . If the School District’s irreproachable conduct and attitude following the accident is a mitigating factor, it is also permissible to consider its attitude before the accident. 42 .

The School District asked the Court not to consider that the fact that no occupational health and safety program existed as the Crown withdrew the charge relating to that offence. I agree that the School District should not be punished for this offence. However, it is my view that the lack of such a program contributed to the accident that resulted in Mr. St-Pierre’s death. There is, in my opinion, a link between the lack of employee training and the fact that Mr. St-Pierre and Mr.

Hachey climbed onto the roof of the school to make repairs without full body harnesses and in the absence of a guardrail and anchor point. On this point, I concur with the Crown’s argument that if a program had been developed, Mr. St-Pierre and Mr. Hachey would have known that they had to wear a harness and that the presence of an anchor point on the roof was essential before undertaking this type of work. In addition, the supervisors of the maintenance employees would have been aware of the need to ensure that such equipment was available and that employees used it

while doing similar work. 43 . The management of the School District ought to have appreciated the risks associated with the lack of on-the-job training for employees and the lack of appropriate equipment. The aggravating circumstance is not just the fact that the School District avoided its obligation to provide occupational health and safety training for its employees. The School District’s attitude in expressly refusing to participate in the development of a program less than three weeks before the accident is unacceptable and, accordingly, is the most significant aggravating factor.

It is the refusal to comply with workplace safety standards rather than the lack of a program itself that is reprehensible. How can a government educational organization believe it could be justified to avoid the statutory requirements governing its workplace? In other words, the School District’s attitude before the accident suggests that the School District pay very little importance and very few resources to the health and safety of its employees. WorkSafeNB had reportedly been trying for several months to convince the School District to comply with the statutory requirements.

On March 26, 2019, the School District confirmed in writing to WorkSafeNB that it had decided not to participate in a project to develop an occupational health and safety program due to a lack of resources and time. 44 . Clearly, complying with the statutory requirements was not a priority for the School District. It took a fatal accident to convince the School District to do so. DISPOSITION 45 .

Having considered the totality of the circumstances and particularities of this case, I find that this is a serious situation where only the imposition of a substantial fine can serve the purpose of general deterrence. 46 . In my view, there is nothing about the circumstances surrounding the commission of the offence or about the circumstances of the School District that allows the Court to show leniency. The fine suggested by the defence seems too lenient considering the loss of life associated with the reprehensive conduct of a governmental organization.

This, in my opinion, is a situation where the identified mitigating factors are offset by the aggravating factors present in this case. The sentence must therefore be aimed at general deterrence, bearing in mind an element of retribution. 47 . I therefore accept the Crown’s recommendation and order the School District to pay a fine of $125,000.00 within the next 120 days. Delivered this 4 th day of December 2020 at __________________________ Bathurst, NB Brigitte Sivret Provincial Court Judge