Her Majesty the Queen - v. -, 2018 SKPC 007

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 007 Date: January 26, 2018 Information: 90215180 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Carrier Forest Products Ltd Appearing: Ms. Buffy Rodgers For the Crown Ms. John Agioritis For the Accused JUDGMENT B.

LANE, J [ 1 ] Carrier Forest Products Ltd. is charged on Information 90215180 as follows: On or about the 8 th day of September, 2015 at or near Big River, Saskatchewan did: (1) being an employer, fail to provide an effective safeguard where a worker may contact a dangerous moving part as required by subsection 137(1) of The Occupational Health and Safety Regulations, 1996 , resulting in the death of a worker, Jonathan Jonasson, contrary to subsections 3-78(

g) and 3-79 of The Saskatchewan Employment Act ; and (2) being an employer, fail to ensure, insofar as reasonably practicable, the health, safety and welfare at work of all the employer’s workers as required by subsection 3-8(

a) of The Saskatchewan Employment Act resulting in the death of a worker, Jonathan Jonasson, contrary to subsections 3-78(

g) and 3-79 of The Saskatchewan Employment Act . [ 2 ] The Crown is represented by Ms. Buffy Rodgers, and the accused is represented by Mr. John Agioritis. The accused has

pled guilty to Count 1 and the arrangement, I understand, is that the Crown will withdraw Count 2 upon completion of sentencing. [ 3 ] The facts of this tragic incident are pretty straight forward and not really in dispute. At the risk of paraphrasing at a minimum, I will recite many of the facts from the sentencing brief that was written so well by Ms. Rodgers. [ 4 ] Carrier Forest Products Ltd. [ Carrier ] an extra - provincial corporation registered in Saskatchewan with its home jurisdiction in British Columbia – incorporated in November 1991 and registered in Saskatchewan in July 1999.

The nature of its business is lumber manufacturing. While the accused has other business interests, it would appear as though the accused employs 180 employees. There is another corporation called Carrier Lumber Ltd. which is a separate body corporate that employs other people. The accused acknowledges that it employs 180 employees of which 136 are employed at the sawmill in the small town of Big River Saskatchewan. In addition, there is a small reloading facility in Prince Albert Saskatchewan which employs six people.

The remaining employees work at a fabrication shop in Prince George, British Columbia. [ 5 ] The Big River sawmill has three “chippers” that shred and cut off unsuitable pieces of lumber into wood chips. [ 6 ] On September 8, 2015, Jonathan Jonasson had been employed by Carrier for approximately one year. On that date, at about 8:10 p.m., Mr. Jonasson, whose occupation was that of an uncertified millwright, was repairing the number three wood chipper at the sawmill. While attempting to secure a guard onto the wood chipper, the guard struck a rotating chipper portion, broke off and struck Mr. Jonasson killing him.

Mr. Jonasson was 31 years of age. [ 7 ] According to Justin Lindskog, a witness to the incident, he and Mr. Jonasson had been called to chipper number three as it was plugged and a belt had either burnt off or nearly burnt off. Both Mr. Lindskog and Mr. Jonasson went to chipper number three to change that belt and to clear the plug. When they arrived, Mr. Jonasson tried to start the chipper but the chip tube was plugged with wood chip debris. They had to clean some particles out from what is known as the chip head. They were able to get the part free enough to turn and Mr.

Lindskog went to the blower end of the machine and watched for chips. Mr. Jonasson started the chip head and once again it was running and the chip head was clear. Mr. Jonasson then went to close the hood that covered the chip head/guard and as it did not close he pushed harder. The hood twisted caught the blade, tore away from the hinges and flew back striking Mr. Jonasson and killing him. [ 8 ] That same work shift, when Mr. Lindskog and Mr. Jonasson changed the belt on the chipper, they had locked out the machine. The machine in fact had been locked out two times prior to the incident.

The expression “locked out” means that all power sources to the machine were shut off and each employee applied his or her own personal padlock to the machine power source so that someone could not accidently open it and turn the power back on. This was to ensure that while people were working on the machine, it wasn’t even a possibility that the machine could inadvertently start again.

Sadly, on the third attempt to get the machine working, the men did not shut the machine off and did not lock it down contrary to corporate policy. [ 9 ] It is clear that the other two chippers at the sawmill are equipped with something called a “Proximity Switch” which I understand prevents the machine from operating in any way while the guard or hood is open. [ 10 ] It is also clear that had a proximity switch been installed on chipper number three, this sad incident could have been prevented. The evidence was that when Carrier purchased the sawmill, chippers one and two came with a proximity switch.

Carrier purchased chipper number three which did not come with that switch. PENALTIES: [ 11 ] The Saskatchewan Employment Act , ss 2013, c s-15.1,

section 3- 79(7) (9):

(7) Subject to subsection (9), every person who is guilty of an offence mentioned in s. 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 the convicted corporation pay a fine not exceeding $1,500,000 in 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. [ 12 ] There is much case law to consider in this particular situation.

However, for reasons which will follow, the Court believes the facts underlying this situation make it really quite unique in Canadian case law up until now. [ 13 ] Insofar as culpability is concerned, I must review the safety features and directives that the accused had in place at the sawmill. [ 14 ] Under Tab B of the book of documents filed on behalf of Carrier, it is clear that employees were required to read and understand various policies including the lockout procedure. The lockout procedure is set out in great detail later on under Tab B.

I do believe that Carrier had each new employee review all of these documents prior to commencing employment. In addition, Carrier did have “Observation of Work Practices” off and on for employees. For example, under Tab D1, on November 28, 2014, Mr. Jonasson was observed doing a proper lockout. Then on June 2, 2015, he was observed replacing a coupler on the trim saw. The comment is “job was done safely and efficiently. Both were locked out correctly”. On March 20, 2015, once again, Mr. Jonasson and Mr. Lindskog were tasked to remove a jammed chain from a trimmer unscrambler.

The quote is “All P.P.E. used, lockout done correctly, safe and correct use of chain fall”. [ 15 ] Under Tab E, the heading “Observation of Work Practices” it sets out that all supervisors must document five observations per week in the sawmill. These observations are random on any employee and contractor. All employees must have at least one observation on file per calendar quarter. It is clear that Carrier had a Health and Safety Coordinator at the mill. [ 16 ] Tab F would appear to be the instruction manual for the operation of the chippers.

On page one under ‘safety hints’, it states “never work on the machine without making absolutely sure that the current has been turned off and that that main switch is locked in the off position.” I draw the inference that in fact employees were required to read this. [ 17 ] Under Tab I, there is a description of the “causal factors”:

a) direct cause: the chipper appears to have been caught by the spinning disc of the chipper propelling the hood open and striking Jonathan.

b) potentially contributing factors: various aspects of the maintenance indicted on the chipper were not conducted in accordance with the lockout procedure. [ 18 ] It is clear that Carrier, as a unionized work place, had a joint Health and Safety Committee in place which was fully active at the sawmill. There was always a formal orientation for new employees, and then a mentorship program as well as the previously referred to “Observation of Work Practices Policy”. [ 19 ] After the incident, Carrier apparently spent in excess of $430, 000.00 associated with trying to make things right.

They provided grief counselling for employees, additional OHS training for employees, and safety modifications. Ultimately, a Proximity Switch was added to chipper number three, notwithstanding that the legislation did not require that specific safety feature, and that was done prior to that chipper being started up again. In addition, Carrier made a significant gratuitous payment to Ashley Jonasson, the widow of the deceased. This was in addition to any life insurance benefits payable to Ms. Jonasson through her late husband’s employment as well as any other benefits. Mr.

Jonasson’s dependents continue to receive benefits from the Saskatchewan Workers Compensation Board. GENERAL CASE LAW [ 20 ] In my view, the leading Saskatchewan decision regarding general factors for consideration is R v Kenneth Pederson Sr. , 2000

SKQB 255, 194 Sask R 102 (Tab 5). In that decision at para 9, Mr. Justice Krueger stated: The purpose of The Occupational Health and Safety Act, 1993, as I understand it, is to set a minimum standard of working conditions inSaskatchewan. Where workers are subjected to unsafe conditions that result in death or serious bodily injury a substantial fine is imposedas a reminder that working conditions that do not meet the prescribed standard will not be tolerated. The fine under this Act is not, as isthe case with some statutes, intended to remove any profit or advantage.

It is a penalty for failing to ensure safe working conditions. Thegreater the risk of harm from an offence, the more often the offence is committed or the longer it is continued the higher the fine. At para 14 Justice Krueger states: … What amounts to a fit and proper sentence in a particular case will depend as much upon the circumstances of the offender as therange of possible fines. The risk of a prohibitive fine must not become the cost of doing business in the construction or industrial fields.Any deterrent effect of a fine should be felt by those in like circumstances, operating a similar enterprise.

Large national andinternational corporations may only experience deterrence from a fine in excess of $100,000. Small ventures do not require a fine of thatamount to be convinced of the need to adhere to safe working standards. Standardization of fines will lead to inequality of treatment inindustries comprised of both large and small operators. [21] I have had an opportunity to read the decision of Her Majesty the Queen v Shercom Industries Inc., 2018 SKPC 3 ,2018 SKPC 003 [Shercom], a decision of Provincial Court Judge M. Gray rendered January 11, 2018.

In that decision, she, like myself,appreciate the observations that Provincial Court Judge Whelan made in the decision of R v Westfair Foods Ltd., 2005 SKPC 26, 263Sask R 162, [Westfair Foods Ltd]. In that decision, Judge Whelan stated as follows at para 38: Having regard to the approach taken in Cotton Felts, supra, and the emphasis upon deterrence as a sentencing factor in the decisions thatI have discussed, the approach which best fits with my understanding of sentencing of regulatory offences, and pertaining mostspecifically 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 theprotection 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 broadestsense 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 thecircumstances of each case.

The following is not an exhaustive list of factors that may be considered, but they are likely relevant to mostoccupational health and safety offences: - the size of the business, including the number of employees, the number of physical locations, its organizational sophistication, and theextent 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 illegalaction, - the gravity of the offence including the actual and potential harm to the employee and/or the public – the degree of risk and extent ofthe 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 orcontinued illegal activity, and

- a prompt admission of responsibility and timely guilty plea. [22] In examining Judge Gray’s decision in Shercom, the circumstances are only vaguely similar. The most obvious similarity isthe tragic death of an 18 year old employee who became entangled in a pulley or roller on one of the tire shredders at this particularbusiness. That particular employee had 74 people working for it. The evidence was that Shercom operated at a loss in 2015 which wasthe year of the tragic death of this individual, as well as in 2016. [23] Some of the following aggravating factors in Shercom do not exist in the present case: 1.

Poor lighting in the outdoor work area which had been specifically identified by workers as a problem. 2. Notices of contravention of the regulations had previously been provided to Shercom. While these were generally corrected veryquickly, nonetheless Shercom did receive notices. 3. Inspectors had attended the facility on January 7, 2015. However, they did not inspect the shredder that resulted in the youngman`s death.

A much greater aggravating factor however is that on January 17, 2015, ten days before the tragic death of the young man,another employee injured his thumb when it was caught in the very same pulley which ultimately lead to this young man`s death. Hehad neglected to lock out the system before trying to remove some of the rubber product. Shercom did install a larger guard in the areaand had a meeting with staff dealing with lockout procedures and a zero tolerance for non-compliance. 4.

There was testimony by the former plant manager who stated that he designed the conveyers on these production lines but he didnot consult any agency with expertise regarding safety of that particular design. Shercom`s president, according to the former plantmanager, wanted the safety features to be “efficient”. In order to do work on this particular unit, the safety guards would have to beremoved. In the opinion of the former plant manager, safety was not a priority. The attitude of management was to rush to complete thework. 5.

In Shercom, employees reaching over top of the guard, which is ultimately what the deceased had done, was only recognized as aproblem after this young man died. The former manager acknowledged that he lost his job in October 2015 when he failed to install anequipment safety guard that resulted in the machine going out of service at a cost of $15,000.00 to $20,000.00. Ironically, his record ofemployment said he was terminated due to production slow down. 6. Shercom had numerous injuries at the work place. 7.

While the deceased in Shercom reached over a protective shield that covered a moving part that had caused a fellow employeeinjury to his hand ten days earlier, the hazard did remain. Judge Gray stated that “it appears that this was a common practice at theworkplace in spite of admonitions from management”. 8. Regarding the degree of fault of the employer, Judge Gray held that Shercom did the bare minimum in order to prevent futurerisk. She stated “even something as simple as properly improving the lighting conditions for night shifts was not undertaken until afterthe fatality”. 9.

A prompt admission of responsibility and timely guilty pleas were examined by Judge Gray. In Shercom, the information wassworn on August 8, 2016, and the accused was in Court for the first time on October 18, 2016. The matter was adjourned occasionally. On June 22, 2017, guilty plea was entered.

It would appear, according to Judge Gray, that there had been ongoing consultations. [24] I am mindful of a leading case in Canada on Occupational Health and Safety known as R v Cotton Felts Ltd, (1982) (ON CA), 2 CCC (3d) 287, and as it is referred to in the cases I have cited, I will go no further than that. [25] In examining the case law on specific fines, I do not find it helpful to consider decisions that involve huge corporations. These unpublished decisions would include: R v Potash Corporation of Saskatchewan and Harry Bendry, a Provincial Court decision ofJudge M.E.

Turpel-Lafond, from August 11, 1998, R v Agrium Inc., a Saskatchewan Provincial Court decision from May 28, 2012; R vPotash Corporation Inc. of Saskatchewan, a Saskatchewan Provincial Court decision from October 21, 2014; R v Consumers’Cooperative Refineries Ltd., a Saskatchewan Provincial Court decisions from May 12, 2015; and R v Potash Corporation of

Saskatchewan Inc. , a Saskatchewan Provincial Court decision from December 9, 2015. These corporations are huge corporations in comparison to the accused in this situation. [ 26 ] Interestingly enough, the one case cited by the Crown in its brief that is reasonably similar is R v Olysky Limited Partnership [ Olysky ], an unpublished decision of Judge Shannon Metivier of the Provincial Court of Saskatchewan, dated March 21, 2016. Ironically, both Crown and defence were the same as in the case before the Court.

The accused in that case was a relatively large player in the industry employing some 420 people in the Province of Saskatchewan. That is more than twice the number of employees of the accused herein. Tragically, in that case, a 19 year old man also died on the job. [ 27 ] There were some aggravating factors in Olysky, one of which was a lack of policy for seatbelt usage. The young man’s death resulted from him failing to wear a seatbelt when his tractor ejected him from the cab. Also, the employer did not enforce the use of seatbelts.

In fact, the seatbelts were rolled up and tucked away under the operator’s seat and the arm rest control. The joint submission which was accepted by the Court was a fine of $70,000.00 plus a $28,000.00 victim surcharge. That is very close to what is being suggested by Mr. Agioritis for the accused herein. [ 28 ] I could go through what appears to be an almost endless list of other decisions of much smaller employers that received higher or lower fines and where circumstances were not the same as in the case before me. That is not to say that these decisions are not relevant.

In my opinion, there is something that very much distinguishes the present case from virtually any other case I have seen. I will get to that shortly. [ 29 ] The Crown Prosecutor, Ms. Rodgers has very candidly and with great integrity acknowledged that Carrier does not have any previous convictions. Further, she has acknowledged that she is not aware of any prior notices of contravention or compliance undertakings for Carrier. In other words, the evidence before the Court is that up until this incident, Carrier had operated in accordance with the law.

I think I can draw an inference that Occupational Health and Safety representatives of the Government of Saskatchewan would inspect the sawmill from time to time, and the fact that there had not been prior convictions or even compliance notices tells me that Carrier had been operating properly. In fact, it addresses the issue of whether or not the inspectors from the Government of Saskatchewan considered chipper number three, with its fastened guard and lack of a proximity switch, a hazard.

It is to the credit of Carrier that they have accepted that the ultimate safety feature would have been the proximity switch, notwithstanding that it had never been cited by Occupational Health and Safety officials from the Government of Saskatchewan for failing to have one.

In my opinion, the integrity of Carrier has simply accepted that if they had had a proximity switch, this death would not have happened. [ 30 ] As I had indicated before, notwithstanding that Carrier had a metallic guard covering moving parts on chipper number three, and a strict corporate policy of lockout, all employers including Carrier have to understand and accept human nature. When you have an energetic and determined young man like Jonathan Jonasson, relative youthful enthusiasm and determination sometimes frustrates and tries the patience of such a person.

In his desire to get the job done, he failed to turn off the power and lock it down on the third attempt. Sadly, this is part of human nature and this is something that employers everywhere must be aware of. People are people and they make mistakes. As has been acknowledged by Carrier, the proximity switch would have eliminated the possibility of human error. [ 31 ] In my opinion, a very relevant factor in this particular case is the ability to pay or the potential impact of the fine on Carrier.

The reason I say this situation is unique is that I think I can take judicial notice of the fact that the Town of Big River is basically a “company town”. Carrier Forest Products Ltd. is by far the largest employer. It employs 136 people at the sawmill itself. It also employs roughly six other people in Prince Albert, Saskatchewan, at a small reloading facility. The remaining 38 employees apparently work at a fabrication shop in Prince George, British Columbia.

In any event, approximately one third of these employees, and I am assuming the bulk of those would be in Saskatchewan, are of Aboriginal and Metis ancestry. I do not doubt that for the people who are employed at the Big River Sawmill, these jobs are the best jobs and the most high paying jobs they have ever had. With that many employees in the Big River Sawmill, it is not much of a stretch to suggest that probably more than 100 other jobs in Big River and district rely on the sawmill.

These would include service jobs such as restaurants, gas stations, other services in the Town of Big River, and contractors cutting down trees, using equipment to limb those trees, skidding those trees to landing sites, loading those trees which are now logs onto semi-trailer units and transporting logs to the sawmill. I am not taking judicial notice of that fact. However, common sense tells me that has to be the case. If Carrier was fined a prohibitively high amount of money as may be justified in some circumstances for some employers, would the sawmill shut down?

Would that penalty turned the Town of Big River into a ghost town? How many people in the District of Big River would become unemployed? [ 32 ] I think I can take judicial notice of the punitive soft wood tariffs being imposed by the United States Government on imports from Canada and in particular from Saskatchewan. This is an issue that has gone on for decades, however does not ever seem to resolve. I accept as accurate, the millions of dollars of losses that Carrier has sustained in the past years.

I accept the report from Deloitte LLP indicating a multi-million dollar negative gross margin on lumber operations as it relates to cost of goods sold exceeding revenues. I accept that Carrier is essentially, by definition, insolvent. That is, their liabilities exceed their assets by approximately 40%. Notwithstanding this, Carrier continues to soldier on or at least attempts to. While I recognize that the primary function of the Court in a sentencing like this is to provide specific and general deterrence, this case is unique in that it has the potential to collapse the entire

economy in the district of Big River, Saskatchewan. By that district, I am including other towns like Debden, Canwood, Shellbrook, and Shell Lake. The geographic region affected by the sawmill itself would certainly go more than 80 kilometers. [ 33 ] While on the one hand, I do believe Carrier is ultimately responsible for the death of this young man as a result of a failure to override human error by installing a proximity switch, by the same token, Carrier, in my opinion, has done everything right since then.

They have spent in excess of $430,000.00 providing for their employees and upgrades including the installation of a proximity switch notwithstanding, that is not required by legislation. They shut down production at the mill from September 8, 2016 to September 21, 2016. In addition they made a substantial gratuitous payment to the widow of the young man who passed away. [ 34 ] In short, as Carrier Forest Products Ltd. had no history of violations and responded with integrity to this tragedy, but for this tragic death, it was a model employer in terms of employee safety.

The Crown is seeking a fine of $500,000.00 together with a victim surcharge of $200,000.00 for a total of $700,000.00. Based on all the information I have, not only do I find that to be highly excessive, I find that may well have a fatal impact on the financial viability of Carrier and the hundreds of families who depend on that saw mill for their livelihood. This is not to say that the Court is warming up to Carrier.

This is to say that hundreds of families including many Aboriginal and Metis families, who do not often get these job opportunities, potentially have their economic future hanging in the balance. [ 35 ] In the circumstances, I accept the recommendation of Mr. Agioritis. Accordingly, I impose a fine of $62,500.00 plus a victim surcharge in the amount of 40% so the global penalty is $87,500.00. I do accept that this will achieve the need for specific deterrence (if such a need exists given the high-classed reaction of Carrier through this tragedy) and for general deterrence.

Other employers will know that this case is not like the rest. Even if other employers in very small operations had to end up shutting down, they were generally small employers in the first place; also the larger corporations were near cities where other employment was available. Carrier is located in the relatively geographically isolated community of Big River Saskatchewan, where many people have built homes, where schools exist, where minor sports programs exist, and where many other small businesses thrive as a result of the sawmill.

I intend this decision to be very unique and to not set a precedent in terms of the amount of penalty except in cases which have exactly the same circumstances. At the risk of being overly repetitive, a fine and victim surcharge as suggested by the Crown could result in the collapse the economy of an entire town and district throwing hundreds of families out of work. [ 36 ] I wish to thank Ms. Rodgers for the highly professional approach she took to this file. In my opinion she had no choice but to advance the argument that she did.

If this were a multi-national corporation or another situation where an entire district economy was not at risk, she is definitely in the ballpark. I would like to thank Mr. Agioritis for the excellent work that he did as well. Both counsel prepared and filed some of the best written arguments and briefs of law I have ever seen in my 33 year career as a lawyer and my five year career as a judge. It is not surprising that both Ms. Rodgers and Mr. Agioritis are seen as some of the absolute top litigators in Saskatchewan in the area of Occupational Health and safety.

I am grateful and priviledged to have worked with them. Dated this 26th day of January, A.D. 2018, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ B. LANE, J