Her Majesty the Queen - v. -, 2014 SKPC 97

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 097 Date: April 29, 2014 Information: 24453101 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - T & L Den Brok Enterprises Inc. Appearing: Bruce Bauer For the Crown T. John Agioritis For the Defendant JUDGMENT P. KOSKIE , J [ 1 ] On April 7, 2012 in the course of changing a tractor tire the tractor fell onto an employee who was severely injured when the hydraulic jack failed. The employee, Mr.

Dalshaug suffered a spinal cord injury and has no movement in both of his lower limbs from the umbilicus downward. [ 2 ] At no time were any blocks put in place in the event of a failure of the hydraulic jack as required under The Occupational Health and Safety Act legislation.

[3] The employee was breaking the bead of the tires and was sitting down at the time he was engaged in this activity. [4] The employer has entered a guilty plea and the sole issue before this Court is to determine the appropriate fine amount in thecircumstances. [5] The Crown’s position is that a fine of $50,000.00 plus a $20,000.00 surcharge would be appropriate in the circumstances. [6] The Crown’s position is that the changing of tractor tires is a core part of this business enterprise and was performed in anegligent manner on a continual basis.

It is clear that at no time did they block tractors when they lifted them prior to this accident. [7] The Defence submits that a fine of $25,000.00, surcharge included is appropriate in these circumstances. [8] The Defence notes that this business has never had a violation under this Act. [9] The employee had only been employed for a two week period with this company and had represented he had priorexperience in the changing of tractor tires.

In the course of his employment review it was noted that he should not be in a sitting positionwhen performing this function of changing tires and it was not up to the employer’s standard. [10] To be clear, there is no issue that the practice of not blocking tractors was an institutional failure and not an individual one. Law [11] A number of cases have been filed giving me a range of sentencing. [12] The factors are set out in R. v. Westfair Foods Ltd. (2005), 2005 SKPC 26 , S.J.

No. 279, a decision of my sisterJudge Whelan at paragraph 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 Regulations, might be expressed as follows: ▪ 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. ▪ The sentencing principle which best achieves this objective is deterrence and while deterrence may be regarded in its broadest senseand includes specific deterrence, general deterrence is a paramount consideration. ▪ There are numerous factors, which may be taken into account and the weight attributed to each will depend upon the circumstances ofeach case.

The following is not an exhaustive list of factors that may be considered, but they are likely relevant to most occupationalhealth and safety offences: ▪ the size of the business, including the number of employees, the number of physical locations, its organizational sophistication, andthe 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 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 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.

Size of Business [ 13 ] It is a privately held, locally owned tire business that employs 13 people and generates approximately $325,000.00 per year. It is not a national chain like Fountain Tire or Kal Tire. Gravity of the Offence [ 14 ] This would be an aggravating factor in that the practice of not blocking the vehicle was negligent and resulted in serious injuries. Maximum Penalty [ 15 ] The maximum penalty is $300,000.00 although it is clear both through case law filed and submissions it would not apply in this case. This is not a case of the worst offender and the worst offence as set out in R. v.

Sage Well Services Ltd ., 2000 SKQB 259 . Range of Fines [ 16 ] A number of cases were filed with a range of sentences from $8,000.00 to $46,000.00 with many involving death. Ability to Pay [ 17 ] The Defendant that pled guilty has a net income of $85,000.00 with the business venture having a net income of $326,000.00. Past Diligence [ 18 ] The Defendant acknowledged that blocking was not a practice that was used in this establishment in contravention of the Act . Previous Record

[19] The employer has no previous record for any safety violations. Degree of Culpability/Contributory Negligence [20] Blocking of a vehicle is done to protect employees in event of an employee mistake or equipment failure, so there is no issuethe employer is 100% liable in this case, even though the employee was in the incorrect position at the time of the accident.

Number of Breaches [21] There is only one charge before this Court, failure to ensure as was reasonably practicable, the health safety at work of theirworker Christopher Dalshaug and did thereby cause serious injury to Christopher Dalshaug contrary to sections 3, 57, and 58(7) of TheOccupational Health and Safety Act, 1993. Employer’s Response/Prompt Admission of Guilt [22] The employer has acknowledged their fault immediately. The employer has expended over $100,000.00 and revamped theirentire operation including all employment policies and training procedures.

They have taken this tragedy seriously and acted decisivelyin making all the changes needed to provide a safe a compliant work place including hiring outside consultants to assist in this change. [23] I have reviewed the cases that were filed. In Westfair Foods the damages were assessed at $30,000.00 inclusive of surcharge.The employer in Westfair was much bigger and the injuries sustained were the same type. The activity was not a core part of thebusiness in the same way as the case at bar. [24] In R. v. Reimer, a decision of my brother Judge Morgan, he assessed damages at $28,000.00 inclusive.

The employer inReimer was much smaller but the act of negligence was worse in that the same act would almost assuredly result in disaster every time itwas committed. [25] This case is similar to R. v. Realistic Roofing Inc. (2007), S.J. No. 206 of my brother Judge Matsalla, in that the injuriessustained were similar and it was a core function of the business. The distinction being in that case it was an informal industry practicethat was the reason for the incident, albeit an incorrect one.

Judge Matsalla imposed fines totalling $19,250.00 when the surcharge was15% rather than the 40% surcharge of today. [26] In R. v. Pederson (2000), 2000 SKQB 255 , S.J. No. 401, Mr. Justice Krueger, as he then was, stated at paragraph 17: Mens rea is not an element in determining guilt in strict liability offences. The degree of culpability, however, is a matter for the Court'sconsideration when deciding a fit and proper penalty. The appellant is a caring, conscientious contractor with a good safety record. Thisis not a case where retribution or rehabilitation are necessary objectives.

A fine that is substantial having regard for the financialcircumstances of the appellant will serve as a reminder to other small trenching contractors that supervision of inexperienced workers isa requirement of the law that will not be relaxed. What amounts to a substantial fine for any offender depends upon that person's abilityto absorb the fine without jeopardizing the business operation.

It must be large enough to operate as a deterrent but not so significant as todiscourage continued operation of the business. [27] The employer has taken this tragic event seriously and made a significant change in the workplace including the hiring ofoutside safety consultants and the expenditure of approximately $100,000.00. The employer has by all accounts been a goodconscientious employer with no prior breaches under this or any other legislation.

The relative size of the business and the nature of thebreach warrant a fine that is substantial in amount in order to serve as a deterrent but not to discourage continued operations of thebusiness.

[ 28 ] In reviewing all the case law filed herein and the salient factors, I have determined that the appropriate fine is $22,000.00 plus $8,800.00 for the victim surcharge, for a total amount of $30,800.00 and allow 6 months time to pay from today’s date. ____________________________ P. Koskie, J