Her Majesty the Queen - v. -, 2021 SKPC 44

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 44 Date: August 6, 2021 Information: 90215246 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Banff Constructors Ltd. Appearing: Buffy Rodgers and Sandeep Bains For the Crown David Myrol For the Accused, Banff Constructors Ltd. SENTENCING DECISION B.M.

KLAUSE , J [ 1 ] This matter has been adjourned to this date to complete the sentencing of Banff Constructors Ltd. [ Banff ]. [ 2 ] Sentencing submissions were provided to the court on May 21, 2021. [ 3 ] The Crown in its well-executed brief seeks a substantial fine in a range of $1,000,000.00. The defendant pursues a much

smaller fine. [ 4 ] The Saskatchewan Legislation that covers the sentencing provisions are contained in The Saskatchewan Employment Act , SS 2013, c S-15.1 [ Act ]: s. 3-79:

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

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

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

(8) If an individual is convicted of an offence mentioned in subsection (7), the convicting judge may, in addition to imposing a fine, order that the convicted individual be imprisoned for a term not exceeding two years.

(9) If a corporation is convicted of an offence mentioned in subsection (7), the convicting judge may order that the convicted corporation pay a fine not exceeding $1,500,000 if the convicting judge is satisfied that it is appropriate to do so having regard to: (

a) the need to achieve general deterrence; (

b) the number of previous convictions imposed on the convicted corporation; (

c) the number of previous notices of contraventions issued to, and the number of previous compliance undertakings entered into by, the convicted corporation; and (

d) the degree of responsibility of the convicted corporation, including considering the number of employees employed by the convicted corporation. [ 5 ] The Crown submitted a number of authorities from which can be distilled the overall concern is that of the health and safety of the worker which must be protected at all costs.

Failure to do so will result in financial sanctions which have been increasingly enlarged over the years to reflect societies concern over preventable accidents in the workplace and to impose upon business concerns a concerted effort to improve their safety performance or suffer significant financial consequences. [ 6 ] I am particularly drawn to the decision of Whelan PCJ in R v Westfair Foods Ltd. , 2005 SKPC 26 , 263 Sask R 162 and, in particular, her comprehensive review of the sentencing law concerning occupational health and safety regulations at paragraph 38 of her decision: [38] Having regard to the approach taken in Cotton Felts, supra, and the emphasis upon deterrence as a sentencing factor in the decisions that I have discussed, the approach which best fits with my understanding of sentencing of regulatory offences, and pertaining most specifically to occupational health and safety 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 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 -employers 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. [ 7 ] The Act mirrors many of these concerns for the sentencing judge. [ 8 ] In applying these factors to the case before me: 1.

On the evidence I heard I can safely conclude that Banff is a large organization with many employees as it supplies the labor force for Graham Construction [ Graham ], one of the largest building contractors in Western Canada. It is extremely well organized and has multi levels of supervision, training and support amongst its work force. 2. At the time of the incident Banff was engaged as the primary work force to build the Pattison Children’s Hospital in Saskatoon a very expensive and complicated project with multiple sub-contractors present on a very busy and active work site.

It was not the usual “mom and pop operation” but a highly sophisticated work site. 3. The gravity of the offence is substantial for the defendant and overwhelming for the family as it has resulted in the death of Eric Ndayishimiye. 4. The degree of risk was reasonably foreseeable as the table cart was involved in lifting a very heavy form to hold the concrete while it dried. It had proven to be unstable on an uneven work surface and the employees knew it was difficult to move especially when operated by one individual.

At the time of its collapse, Eric was not involved in using the cart but was crushed when the cart collapsed on top of him when he was working on clean up in the general area. 5. The maximum penalty prescribed by statute is $1.5 million which reflects the governments concern in regard to workplace safety and prioritizes the safety of the employee. 6. The range of fines in Saskatchewan is vast and it is often difficult to find an exact circumstance similar to the case at issue.

The Crown submits that the current range is between $10,000.00 and $560,000.00 inclusive of the 40% victim fine surcharge but does note that the latter fine was in R v Langenburg Redi-Mix Ltd. [1] which is currently under appeal to the Court of Queen’s Bench.

7. I have not been advised of any inability of the defendant to pay and can only assume on the evidence before me that they have the ability to pay a fine in whatever amount is assessed by the Court. 8. In terms of past diligence, I am satisfied that throughout the course of this particular build, Graham and Banff both demonstrated an overwhelming interest in providing a safe and secure workplace. They appear to have hired experienced work people, followed safe work procedures, had daily safety meetings and continued to provide and secure workplace safety assessments.

Obviously, it is to their benefit to do so - an accident like this is not good for their firm name or reputation, it is expensive to remediate, and slows down the actual build. They had no desire for anyone to be hurt or killed on the worksite. They could however in my opinion brought staff who had trained on the table cart in Alberta to Saskatchewan in order to properly instruct the employees on its use at the Pattison Children’s Hospital.

The table cart arrived on site in Saskatoon in pieces, had to be put together by guess at the site and then substantially altered to raise the table to a new height without any input from the manufacturer in Italy. 9. The contributory negligence of another party i.e. Pilosio [2] . I agree with the Crown that Banff’s strategy throughout was to attempt to cast blame on others including Pilosio , Graham , and Gerard McLaren. This was a trial strategy given the complexities of the case and was perhaps made necessary by exigencies such as insurance of which the Court was unaware.

Eric Ndayishimiye however was completely blameless and did not in any fashion whatsoever contribute to his own demise. He did not advertently or inadvertently put himself in harm’s way he was simply doing what he had been instructed to do at the work site. I agree with the Crowns contention that this could have been avoided had Banff taken the time to properly instruct and train the Saskatoon employees on the use of this relatively new and apparently uncomplicated appearing piece of equipment. 10.

The number of breaches is difficult to calculate as while the cart was in service at the Children’s Hospital from spring 2016 to July 2016 no further incidents of improper use or damage were reported. It appears it was used without incident until July16 but this does not deter from the possibility that it could have collapsed prior to that date as it was in near daily use. 11. The employer’s response was not part of the trial proper but was heavily relied upon by the defendant Banff in speaking to sentence.

Banff advises that in addition to the WCB (Workers’ Compensation Board) benefits that the deceased’s family would have received that his client had provided for life insurance for their employees and that the family would have received $200,000.00 from that source. In addition Graham and Jar-Dig paid the family an additional $150,000.00 for compassionate reasons, covered the cost of the funeral and in addition sent corporate members to Eric’s house, to his funeral, and have been in relevant contact with Eric’s family both at the time of his death and subsequently.

In my view this provides both a significant and unusual amount of mitigation in favor of the defendant. Very few corporate defendants have both the inclination or financial resources to accomplish this. This was a greatly mitigating factor. 12. Measures taken to prevent a re-occurrence. The evidence at trial indicated that upon this accident occurring, the carts were removed from service immediately and have not been used since. The co-defendant Pilosio also removed them from service in Canada. This is a mitigating factor. 13.

A prompt admission of responsibility and timely guilty plea was not offered in this case. To a large extent this was the trial strategy of the co-defendant Pilosio which was to object to nearly every facet of the trial and to incur lengthy and in my opinion often unnecessary delays. I agree with Banff that of the two, Banff was much more amenable to compromise and admissions than the co- defendant so in many respects Banff ’s response was tailored to fight off the Crown and the co-accused simultaneously. In my opinion this is neither a mitigating nor aggravating factor in the particular facts of this case.

Conclusion [ 9 ] I recognize that both the Crown and the courts are taking a much more significant and harsher approach in sentencing companies with employees who risk their lives in their pursuit of employment. Previous fines were often at the very low end of the range and companies could therefore factor a possible low fine at the cost of doing business. Higher fines would send a message that standards must be improved and short cuts eliminated in order to preserve the lives of these workers.

Banff is clearly not a mom and pop operation but a large and busy corporate entity who works on some of the largest projects in Saskatchewan. [ 10 ] I note for the record that they had many safety protocols in place, and dedicated safety specialists whose sole job is to make the workplace as safe as possible. This does not come cheaply.

[ 11 ] They have no previous history of infractions of this Act . They have made significant reparations to the family of the deceased and are to be commended on that front. [ 12 ] In this particular case, the mistake made was to transfer the table carts from Grande Prairie to the Pattison Children’s Hospital without transferring any of the crew who had worked with this equipment at Grande Prairie. The carts are of relatively simple manufacture and simple in appearance but they are designed to carry relatively heavy structural loads on a smooth surface.

They were deceptive in that regard and there was no one on hand in Saskatoon who was trained in either their set up or operation. Additionally, they were modified to be raised higher without the consent or knowledge of the manufacturer and with little or no thought as to how that might change the dynamics of their operation. In my opinion, this was a fatal mistake and led to the ultimate collapse of the cart which killed Eric. It is more in the nature of

an act of omission as opposed to commission. [ 13 ] In applying the principles contained in s. 9 of the Act , I make the following observations: 1. I agree completely with the Crown there is a need to achieve general deterrence and a substantial fine would serve to further that goal. 2. There have been no previous convictions of the accused Banff . 3. The Crown is not relying on any previous notices of contraventions issued or any previous compliance undertakings entered into by, the convicted corporation; and 4.

The accused is a large employer with over 400 employees and bears a high degree of responsibility for their well-being on its very complicated builds. [ 14 ] In my view, bearing in mind the sentencing principles in the Act and in general, and the representations of both the Crown and defence, an appropriate fine of $250,000.00 in regard to each charge inclusive of surcharge would be in order. __________________________ B.M. Klause, J