His Majesty the King - v. -, 2022 SKPC 47

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 47 Date: December 8, 2022 Information: 991198483 Location: Saskatoon _____________________________________________________________________________ Between: His Majesty the King - and - King Stud Contracting Ltd. Appearing: B.L. Rodgers For the Crown G.A. Green For the Accused SENTENCING DECISION Q.D. AGNEW , J [ 1 ] February 19, 2021, began as an ordinary day for Dawson Block. He was 20 years old, outgoing and popular, a motorcycle enthusiast.

He was a first-year electrician apprentice, and for the previous four months had worked for the defendant framing company, King Stud Contracting Ltd. [King Stud]. It was his first experience in the construction industry. He had no way of knowing, when he walked onto the job site that day, that he would not walk off it; that, in fact, he would never move so much as a finger ever again. [ 2 ] Dawson Block’s employer, King Stud, was a small corporation with something of a history with Occupational Health and Safety inspectors.

In the previous five years, OHS inspectors had three times cited King Stud for a total of 10 violations including, most crucially for Dawson Block, four related to fall prevention and safety. Among those violations were ones relating to use of an unsafe lifting platform as a work platform, and failure to properly use fall protection equipment. Those violations were found on September 3, 2020, less than six months before Dawson Block’s last day of physical mobility.

[ 3 ] On February 19, Dawson Block was working with Joshua Wollf (principal of King Stud) and another employee, Darren Lloyd. Block and Wollf were working five metres in the air, on a “work platform” held up by a JLG telehandler, a sort of a stand-off forklift or crane. The platform had a floor, a wire-mesh wall on the crane side about waist high, and the same on either end - except that the ends were gates which could be opened. There was no roof, and the “front” side of the platform was open.

This was the same platform King Stud was informed on September 3, 2020 could not be used for workers, but only for material; however, its use as a work platform was a normal practice for King Stud, a practice which continued more or less constantly after the September 3 OHS Notice of Contravention with respect to its use. Wollf had chosen not to have King Stud purchase a proper work platform in order to save money. [ 4 ] Wollf and Block were installing roof rafters. The rafters exceeded the width of the work platform, and as a result the gates on either end of the platform had been opened.

In essence, at this point Wollf and Block were standing five metres above ground on a platform with a floor and a back, and nothing else. [ 5 ] Neither Wollf nor Block were wearing fall arrest equipment, although it was available onsite. Even though he had never received fall protection training and had only worn the equipment a couple of times with King Stud, before stepping onto the work platform that morning Block had asked Wollf if they should not be wearing it. Wollf, in his own words, “brushed off” the suggestion.

He considered that it slowed down their work, and he was anxious to get the job done and move on to the next site. [ 6 ] On the platform, Wollf and Block were completing the gabled rafters above the second-floor balcony of the townhouse they were working on. Block was near the right end of the work platform. As he stepped to his right, he pushed against the right-side gate: the unsecured right-side gate. Rather than holding him in place, the gate swung open. He fell five metres to the ground, landing face down. [ 7 ] Dawson Block suffered a spinal fracture at the C5 level.

He spent three months in Intensive Care Units, much of it on a respirator. He is, and for the rest of his life will remain, a quadriplegic. He requires 24-hour nursing care. He has no control over his bodily functions. He requires specialized equipment for every aspect of his life. He must take a variety of medications. None of these effects will change for the rest of his life.

His victim impact statement makes it clear that he is facing these challenges with the best attitude possible, but also contains clear indications of the ruin that King Stud has made of what he expected his life to be like. [ 8 ] Nor are the effects felt by him alone. A very moving victim impact statement from his mother makes clear the profound changes that her son’s injuries have imposed on herself and her husband.

Their lives and their plans for their future have been completely restructured as a result. [ 9 ] King Stud pled guilty to: being an employer [did] fail to ensure that a worker working from a work platform mounted on a forklift on which a worker may be raised or lowered or required or permitted wo [ sic ] work, uses a personal fall arrest system that meets the requirements of

Part VII as required by section 194(3) of The Occupational Health and Safety Regulations, 1996 , resulting in the serious injury of a worker, Dawson Block, contrary to subsections 3-78(

g) and 3-79 of The Saskatchewan Employment Act . [ 10 ] R v Westfair Foods Ltd. , 2005 SKPC 26 , 263 Sask R 162 [ Westfair Foods ] is a seminal case in Saskatchewan for the sentencing of corporations for OHS violations causing injury. At paragraph 38, Whelan J. distilled the essential principles from the case law and academic works 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 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. [ 11 ] The quoted portion of Westfair Foods has been cited many times in Saskatchewan.

For recent examples, see: R v Banff Constructors Ltd. , 2021 SKPC 44 ; R v BLS Asphalt Inc. , 2021 SKPC 34 ; R v Norwood Developments Ltd. , 2021 SKPC 20 [ Norwood Developments ]; R v Jimlee Farms Ltd. , 2022 SKPC 8 [ Jimlee Farms ]. [ 12 ] I apply the Westfair Foods criteria to the present situation as follows: 1. size of the business - King Stud is a small business. Around the time of the accident, it employed between three and five people.

Its gross revenues over the past six years have largely been in the $200,000 - $400,000 range (see point 7, below); 2. scope of the economic activity involved in the accident - the activity was core to King Stud’s operation. The employees were performing the only type of work in which King Stud engaged, and the accident occurred as a direct result of King Stud choosing to avoid the expense of buying a safer work platform; 3. gravity of the offence and extent of harm - both would be difficult to overstate in the present case.

The gravity is heightened by the fact that King Stud had been cited for a violation of precisely the same nature less than six months earlier. The extent of harm could only be worse had Mr. Dawson died as a result of his injuries; 4. degree of risk, extent of danger, foreseeability - all are extremely high, and blindingly obvious even to an untrained eye; 5. maximum penalty - $1.5 million; 6. range of fines in Saskatchewan for similar offences - $11,900 - $575,000 (Crown Sentencing Brief, para. 18).

The Court in Jimlee Farms recently performed a very thorough analysis of OHS fines in cases involving serious injury or death. A similar review was performed in Norwood Developments .

I do not propose to duplicate that work here, but I have had the advantage of those decisions; 7. ability to pay - the following is summarized from the financial statements of King Stud, although they are unaudited and not the subject of a review engagement: Gross revenue Net income Assets Liabilities Dividends Retained earnings and share capital 2016 269,579 3,378 63,902 80,485 65,000 63,902 2017 266,786 82,286 110,990 95,287 50,000 110,990 2018 208,651 27,459 64,228 61,066 40,000 3,162 2019 150,128 63,393 34,510 27,955 60,000 6,555 2020 352,649 155,200 153,273 66,518 60,000 86,755 2021 370,567 17,881 127,252 88,491 75,000 38,761 Mr.

Wollf and his wife do not take salaries from King Stud, but only take dividends. The financial picture shown above has therefore not been manipulated by inflating the corporation’s expenses via salaries to them. There may well be other expenses from which they benefit, but I do not have any evidence to that effect, and I therefore disregard that possibility. I did not receive an adequate explanation for the similarity in revenue but gross disparity in income between 2020 and 2021, which according to the financial statements seems to have been largely driven by an increase in salaries and benefits.

It is clear that King Stud’s fortunes have varied over the past six years. It is also clear that King Stud has navigated the current pandemic with considerable success. Over the past two years, its revenue has been at its highest, it had its best year ever for net income, and its assets are up. The only dark spot is its 2021 retained earnings, but even that is substantially above 2018 and 2019, and Mr. Wollf and his wife were able to draw their greatest amount of dividends ever from King Stud that same year.

Combined dividends and retained earnings were substantially over $100,000 in 2016, 2017, 2020 and 2021, and I note from the balance sheet that a substantial part of the decrease between 2020 and 2021 is attributable to the purchase of a vehicle; depending on the nature of the vehicle, it may be that Mr.

Wollf and his wife also derive some personal benefit from it. 8. past diligence in complying with or surpassing industry standards/previous offences/degree of fault or negligence of employer - the accident occurred less than six months after OHS had specifically warned King Stud not to use the same lift and platform in exactly the same way. In order to save money, King Stud had made a deliberate decision not to comply with OHS regarding the platform. Mr. Block was given no training in fall safety. Although fall safety equipment was present on site that day, and Mr.

Block specifically asked if they should use it, Wollf brushed off that suggestion in order to complete the work more quickly. King Stud had a history of failing to properly guard against falls, with violations on August 25, 2016, and September 3, 2020, as well as other, unrelated violations on those dates. Additionally, two further events occurred after Mr. Block’s fall which help place King Stud’s actions in context. On June 5, 2021, King Stud was again the subject of OHS violations, including failure to wear hard hats. Although these violations occurred after Mr.

Block’s injury, and were not fall-related, the fact that less than four months after a catastrophic accident King Stud was not requiring workers to wear basic safety equipment speaks to a general lack of interest in worker safety, and a lack of willingness to comply with

OHS requirements. Even more troubling, on April 26, 2022 - less than a year after the last violations, and barely more than a year after Mr. Block’s injury - King Stud again was found in violation of both hard-hat and fall protection requirements. Additionally, the only other King Stud employee on site the day of Dawson Block’s accident stated that King Stud’s safety culture was “not very safe”, that there were no written safe working procedures, that Mr. Wollf “wasn’t running a very safe job site”, and that Mr.

Wollf “wasn’t too worried about [fall protection] harnesses”; 9. contributory negligence - there was no negligence on the part of anyone save for King Stud’s principal, Mr. Wollf; 10. number of breaches - this category in essence asks whether the event was an isolated one, or part of a pattern. It is clear that the lack of care that resulted in the accident was far from isolated.

The pattern and type of violations referred to in 8, above, make that clear; 11. employer's response - reparations to victim or family - measures taken and expense incurred so as to prevent a re-occurrence or continued illegal activity - there have been no reparations or financial assistance provided by King Stud to Mr. Block or his family. King Stud, as part of its sentencing submissions, provided a letter of apology which Mr. Wollf read into the record. There is no evidence before me that this letter has been delivered to Mr. Block, or indeed that there has ever been any communication from King Stud to Mr.

Block since the accident. In the letter, Mr. Wollf states that he is “. . . striving each day to hold myself to the highest standard of safety . . .” I can only assume that this Damascene conversion occurred sometime after the April 26, 2022 violations (as it clearly had not occurred before then), and not in response to Mr. Block’s tragedy; or, conversely, that it is nothing but a meaningless platitude, produced solely for the purpose of securing a lighter sentence for King Stud. After the accident, King Stud purchased a certified platform and completed a fall protection plan.

As noted above, however, just over a year later they were again cited for failing to implement fall-protection measures; and 12. early guilty plea – King Stud entered an early guilty plea. [ 13 ] The Crown has urged me to consider the precedent of R v Brad Hammond Construction Ltd. (January 24, 2018, unreported oral decision) [ Brad Hammond ], and follow its penalty of $100,000 plus $40,000 surcharge. Defence suggests a total penalty of $45,000, paid equally over two years. [ 14 ] I do not intend to go into the circumstances of Brad Hammond.

I find that it is of very limited utility since it was the product of a joint submission by counsel. In R v Stupnikoff , 2013 SKPC 57 , 416 Sask R 307 [ Stupnikoff ] at para. 54 , I made the following comments with respect to the precedential value of joint-submission sentences: [54] As is well-known both to counsel and to the Court, a joint submission is to be given very serious consideration by the sentencing judge, and rejected only if it would be clearly inappropriate, such as where it is demonstrably unfit, would be contrary to the public interest or would bring the administration of justice into disrepute.

The range of "not clearly inappropriate" can be quite broad, such that the sentence imposed by virtue of a joint submission may be significantly different than what the Court would have imposed in its absence. Since a sentence imposed as a result of a joint submission is therefore not the result of unfettered judicial reasoning, I think it should be given less weight as a precedent. [ 15 ] Although those remarks were made prior to the Supreme Court of Canada’s decision in R v Anthony-Cook , 2016 SCC 43 , [2016] 2 SCR 204, I believe they are still valid.

Anthony-Cook raised the bar for rejecting joint submissions even higher than it was at the time of Stupnikoff , by requiring that they be accepted unless doing so would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. Accordingly, the range of sentences which the Court may be compelled to accept is even wider now than it was at the time of Stupnikoff and those comments, in my view, remain pertinent. [ 16 ] In 2014, the maximum fine available for infractions such as that before me was raised from $300,00 to $1.5 million, exclusive of 40% surcharge.

The effects of such a dramatic increase were considered in R v Carrier Forest Products Ltd. , 2019 SKQB 84 [ Carrier Forest ]. The Court there made the following comments (paras. 34 - 36): [34] In my opinion, the better view is that when the maximum fines for infractions under the Act were increased but no change was made by way of imposing minimum fines the legislature has not intended that fines should be increased generally.

This conclusion can be inferred from Pederson at para 14 and Sage Well at paras 20-25 where the judges in those cases pointed out the significance of no minimum fine being set by the legislation. Those authorities point out that when no minimum sentence is imposed that attempts to standardize fines should be discouraged.

Those authorities also point out that while an increase in the maximum fine is certainly a consideration in determining a sentence that it remains within the sentencing judge's discretion to determine the appropriate fine after considering all sentencing factors. [35] When, in a legislative amendment, the minimum sentence is not changed or a range provided but the maximum fine is increased the better conclusion to be drawn is that there was a need to ensure that fines for the largest corporations that are the worst offenders could be large enough to ensure that the fine would not be simply a cost of doing business. [36] It does not follow that all sentences for infractions after the amendment are to increase which in turn means that sentences for infractions prior to the amendment can be considered on the questions of parity and fitness. [ 17 ] However, after Carrier Forest was decided, the Supreme Court of Canada delivered R v Friesen , 2020 SCC 9 , 391 CCC (3d) 309 [ Friesen ].

The Supreme Court considered the effect of Parliament increasing the maximum penalty for sexual offences against children and concluded that this increase should be reflected by generally increased penalties for all such offenders (see paras. 96-100).

That is, in Friesen the Supreme Court adopted the opposite view from that in Carrier Forest : the effect of the increased maximum is not simply to increase the top end of the range, but to act as an inflationary factor for all offenders. [ 18 ] Friesen was a decision in a criminal matter; the Nova Scotia Supreme Court considered its applicability to Occupational Health and Safety offences in R v Hoyeck , 2021 NSSC 178 [ Hoyeck ]. It concluded (paras. 22 - 26) that Friesen also applied to OHS matters:

[22] Following counsel's submissions on February 25, 2020, but prior to the sentencing judge rendering her decision on June 5, 2020,the Supreme Court of Canada, on April 2, 2020, issued its decision in Friesen, clarifying that successive increases by Parliament inmaximum sentences for offences is a determination that these offences are to be treated as more serious than they had been in the past. Alegislator's decision to increase maximum sentences should generally result in the imposing of higher sentences than the sentencesimposed in cases that preceded the increases in maximum sentences.

Therefore, the range of sentences pre-Friesen are of limited value,as Friesen imposes on a sentencing judge the creation of a new range in line with the increased maximum sentences. [23] In Friesen, the Supreme Court of Canada discussed increased maximum sentences in relation to sexual offences against childrenand, in my view, their analysis applies equally to increases in maximum fines under the OHSA. (

a) Increase in Maximum Sentences 96 Maximum sentences help determine the gravity of the offence and thus the proportionate sentence. The gravity of the offenceincludes both subjective gravity, namely the circumstances that surround the commission of the offence, and objective gravity (L.M., atparas. 24-25). The maximum sentence the Criminal Code provides for offences determines objective gravity by indicating the "relativeseverity of each crime" (M. (C.A.), at para. 36; see also H. Parent and J. Desrosiers, Traité de droit criminel, t. III, La peine (2nd ed.2016), at pp. 51-52).

Maximum penalties are one of Parliament's principal tools to determine the gravity of the offence (C. C. Ruby etal., Sentencing (9th ed. 2017), at $S 2.18; R. v. Sanatkar (1981), (ON CA), 64 C.C.C. (2d) 325 (Ont. C.A.), at p. 327;Hajar, at para. 75). 97 Accordingly, a decision by Parliament to increase maximum sentences for certain offences shows that Parliament "wanted suchoffences to be punished more harshly" (Lacasse, at para. 7).

An increase in the maximum sentence should thus be understood as shiftingthe distribution of proportionate sentences for an offence. ... 99 These successive increases in maximum sentences indicate Parliament's determination that sexual offences against children are to betreated as more grave than they had been in the past. As Kasirer J.A. (as he then was) reasoned in Rayo, the legislative choice to increasethe maximum sentence for child luring [TRANSLATION] "must be understood as a sign of the gravity of this crime in the eyes ofParliament" (para. 125).

We agree with Pepall J.A.'s conclusion in Stuckless (2019) that Parliament's legislative initiatives thus giveeffect to society's increased understanding of the gravity of sexual offences and their impact on children (paras. 90, 103 and 112). 100 To respect Parliament's decision to increase maximum sentences, courts should generally impose higher sentences than thesentences imposed in cases that preceded the increases in maximum sentences.

As Kasirer J.A. recognized in Rayo in the context of theoffence of child luring, Parliament's view of the increased gravity of the offence as reflected in the increase in maximum sentencesshould be reflected in [TRANSLATION] "toughened sanctions" (para. 175; see also Woodward, at para. 58).

Sentencing judges andappellate courts need to give effect to Parliament's clear and repeated signals to increase sentences imposed for these offences. (Emphasis Added) [24] The Court further went on to discuss the need for an upward departure from prior sentencing ranges when Parliament raises themaximum sentence for an offence at para. 108: 108 Courts can and sometimes need to depart from prior precedents and sentencing ranges in order to impose a proportionate sentence.Sentencing ranges are not "straitjackets" but are instead "historical portraits" (Lacasse, at para. 57).

Accordingly, as this Courtrecognized in Lacasse, sentences can and should depart from prior sentencing ranges when Parliament raises the maximum sentence foran offence and when society's understanding of the severity of the harm arising from that offence increases (paras. 62-64 and 74). [25] Friesen has changed the landscape. For Courts to give "the legislative intent its full effect" we cannot be bound to prior sentencingranges that do not reflect the Legislature's view of the gravity of the offence and society's increased understanding of the severity of theharm arising from the offence (see paras. 108-109).

An upward departure from prior precedents is appropriate to arrive at a proportionatesentence. The sentencing judge was aware of the Supreme Court of Canada's decision in Friesen (see para. 66 of the sentencingdecision).

[26] I find that the sentencing judge erred in principle because she failed to properly consider the Legislative Assembly's decisions to repeatedly increase maximum sentences, especially the 2011 doubling of the maximum fines for OHSA fatalities to $500,000 and she failed to properly consider the principle from Friesen that Courts should generally impose higher sentences than the sentences imposed in cases that preceded an increase in maximum sentences. [ 19 ] I find the Hoyeck reasoning persuasive, and I adopt it.

Accordingly, in considering the effect of past sentencing decisions, an “inflationary” factor must be taken into account. However, I do not think it appropriate that such an increase be simply a mathematical exercise: the fact that the maximum penalty increased five-fold does not, and should not, dictate that all precedents be treated as if they were five times their amount, or that all appropriate penalties should increase in similar lockstep.

I am cognizant of the point made in Carrier Forest that an increase in the maximum fine could reflect “a need to ensure that fines for the largest corporations that are the worst offenders . . . be large enough to ensure that the fine would not be simply a cost of doing business” (para 35). In the absence of evidence of legislative intent, I conclude that the Legislature may well have been motivated by both the Friesen and the Carrier Forest intentions.

The Legislature can certainly have more than one purpose in enacting legislation; these two objectives are not in conflict; and it is a harmonious way of giving effect to the inflationary objective without requiring that fines suddenly increase by a multiple of five.

Accordingly, I am of the view that this increase requires a substantial increase in penalties, and that sentencing precedents must be viewed accordingly, but that no more precise statement about the size of the required increases can be made simply from the change to the maximum penalty. [ 20 ] One of the factors to consider in determining the appropriate fine is the finances of the defendant. The fine must be substantial enough in the circumstances that it acts as a deterrent to others: Westfair Foods at para 38 ; R v Shercom Industries Inc. , 2018 SKPC 3 at para 26 .

It must also be large enough that it has a significant impact on the defendant, so that it is not seen simply as a licence fee: R v Canadian MDF Products Company , 2002 ABPC 82 , 316 AR 228 at para 72 ; Carrier Forest at para 35 . However, it makes no sense to impose such a large fine that the defendant would have no prospect of paying it. The principals of a corporation, if they think it makes economic sense, can simply walk away from their investment and let the corporation die, in which case the fine goes unpaid, to the loss of all concerned.

Additionally, the other employees of the corporation lose their livelihood; although, as pointed out in Canadian MDF , “[i]t would be perverse to conclude that an employer was operating in a manner which endangered the safety of employees, and then impose a lower fine to ensure that the employees could continue to work in an unsafe environment” (para. 72). [ 21 ] I must also bear in mind that I have the ability to set a time for payment of the fine, which can be used to balance out its impact on King Stud. [ 22 ] As shown above, combined dividends and retained earnings over the past six years have been as follows: 2016 $128,902 2017 $160,990 2018 $3,162 2019 $6,555 2020 $146,755 2021 $113,761 [ 23 ] In essence, as the evidence is that neither Mr.

Wollf nor his wife took salaries from the corporation, this is the amount that they as principals of the corporation have made in those years (whether they took it out of the corporation or not). Clearly, these “net proceeds” have fluctuated considerably over six years, from a low of just over $3,000 to a high of just over $160,000, with an average of $93,354. Four of those six years, however, have seen net proceeds over $100,000, and in three of them, net proceeds were significantly over that figure.

Based on these historical results, it is not unreasonable to expect that King Stud can typically expect net proceeds in the range of $125,000 per year. My intention in performing this calculation was to determine what profit the principals of the corporation might expect to achieve annually, whether that be by way of salaries, dividends or retained earnings.

Had the principals also taken salaries, or if there was evidence of them receiving other benefits (taxable or not), I would have included those amounts in “net proceeds”. [ 24 ] A total penalty (fine and surcharge) of roughly one year’s net proceeds to the principals of the corporation, with time given to pay, is a proper balancing of all of the factors in this case - including the fact that, other than its early guilty plea, virtually none of the Westfair Foods factors are in King Stud’s favour, and some of them (such as its compliance record before and after this incident) are strongly against it. [ 25 ] Such a fine will be a very significant penalty to the principals of the corporation but should not be so debilitating as to cause the collapse of King Stud.

Will it be extremely uncomfortable for them for several years? Undoubtedly; but not nearly so uncomfortable as the rest of Dawson Block’s life will be for him, as a result of their actions or inaction. [ 26 ] There will accordingly be a fine of $90,000.00, together with surcharge of $36,000.00, for a total penalty of $126,000.00. The time for payment will be decided after the parties have an opportunity to speak to it. ________________________ Q.D. Agnew, J