Her Majesty the Queen - v. -, 2021 SKPC 20

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 20 Date: February 26, 2021 Information: 99112 9156 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Norwood Developments Ltd. and Capella Cabinetry Inc . Appearing: B. Rodgers For the Crown J. Watson For the Accused SENTENCING DECISION R.D.

JACKSON , J I INTRODUCTION [ 1 ] Norwood Developments Ltd. (Norwood) has entered a guilty plea to count 2 on Information 991129156 that it did: 2) being a contractor, fail to ensure, insofar as is reasonably practicable, at every work process or procedure carried on at every place of employment or work site where an employer, employer’s worker or self-employed person works pursuant to a contract between the contractor and the employer or self-employed person that is not in the direct and complete control of an employer or self-employed person under contract with the contractor, is safe for, without risk to the health of, and adequate with regard to facilities for the welfare of, all employers, workers or self-employed persons at the place of employment as required by subsection 3-12(a)(ii) of The

Saskatchewan Employment Act resulting in the death of a worker, namely Shane Hartell, contrary to subsection 3-78(

g) and 3-79 of The Saskatchewan Employment Act . [ 2 ] Capella Cabinetry Inc. (Capella) has entered a guilty plea to count 3 of Information 991129156, that it did: (3) where there is a risk of injury to the head of a worker, fail to provide approved industrial headware and require a worker to use it as a required by subsection 91(1) of The Occupational Health and Safety Regulations, 1996 resulting in the death of a worker, namely Shane Hartell, contrary to subsection 3-78(

g) and 3-79 of The Saskatchewan Employment Act . II BACKGROUND [ 3 ] On June 29, 2018, 47 year old Shane Hartell, an employee of Capella, fell into an unfinished basement at a Norwood new- build residential site. Mr. Hartell suffered a non-survivable brain injury when his head struck a foundation footing in the basement. He was not wearing a protective hard hat at the time of the mishap.

On June 30, 2018 he was taken off life support and passed away. [ 4 ] The day before the incident, a sub-contractor, Rempel Brothers Construction [ Rempel ], had excavated a large area next to the front door entry and had removed the temporary stairs leading to the main entrance of the house. As a result, when Mr.

Hartell came the next day to make preliminary rough kitchen cabinet measurements, he was required to utilize an on-site ladder to gain access to the main floor kitchen from the basement. [ 5 ] At approximately 9:50 a.m. on the incident date, a worker heard an unusual sound and upon investigation discovered Mr. Hartell lying unconscious in the basement beneath an opening in the main floor. A ladder was nearby standing upright, partially leaning against the wall to the left of the opening. It was assumed that Mr.

Hartell fell as a result of an unsecured ladder although the Court notes that how his fall actually occurred was not witnessed. [ 6 ] A number of potential hazards existed at the construction site at the time including the removed stairs preventing the proper access or egress to the structure. Also, there were a number of large openings on the main level where a worker could fall through. [ 7 ] Norwood was responsible for the coordination of the work at the job site. It was unaware that the stairs had been removed by the sub-contractor, Rempel , when Mr. Hartell attended for his work duties.

Although Norwood expected to be kept informed by sub- trades relating to hazardous conditions created as work progressed, it was aware that such sub-trade communication was inconsistent, and at times, non-existent. [ 8 ] Capella provided employees with personal protective equipment including hard hats, however its use was not enforced but rather left to the discretion of the employees. [ 9 ] Neither Norwood or Capella have any previous occupational health and safety convictions or prior notices of contraventions pre-dating this incident.

III LEGISLATION [ 10 ] The charges against the defendants are pursuant to The Saskatchewan Employment Act, SS 2013, c S - 15.1 [ Act ], which came into force on April 29, 2014 and The Occupational Health and Safety Regulations, 1996 , RRS c O-1.1, Reg 1 [ Regulations ]. [ 11 ]

Part III of the Act at subsection 3-78 outlines offences and 3-79 deals with penalty provisions, the relevant sections of which for this matter are 3-79(7), (8) and (9):

(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. IV CASE LAW [ 12 ] The Court is grateful to Crown and defence for the many decisions and thorough written submissions provided. As counsel point out, and the cases confirm, many common themes and principles have emerged over time concerning situations where employees have suffered serious injury or death while engaged in the course of their employment. Public Welfare Offences

[ 13 ] These type of cases fall into the category of public welfare offences where “. . . basic rules are established and enforced to protect the physical, economic and social welfare of the public”. [1] Equally so, the prevention of future harm, where at all possible, is a significant policy objective. [2] Deterrence [ 14 ] The cases, without exception, emphasize that the paramount sentencing principle for public welfare offences is deterrence. [3] Baynton, J in Sage Well Services Ltd . [4] however tempered this to some degree when he cautioned that “. . . the degree of culpability of the offender is still a very significant factor from a sentencing perspective that is not replaced by the deterrence factor alone”.

Further, he stated that as clearly indicated by Cotton Felts, supra , the objective of the fine imposed . . . is deterrence, not retribution. No matter how high the fine may be, it can never replace the life that has been lost or the injury that has been suffered”. [5] Sentencing Principles [ 15 ] Westfair Foods [6] has been cited and applied in numerous decisions, both before and after the 2014 amendments, as a useful template when considering proper sentencing principles, which, in effect, expand upon the legislative considerations enumerated in s. 3- 79 (9).

Whelan, J at para. 38 states: [38] Having regard to the approach taken in Cotton Felts Ltd., 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, - 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.

V APPLICATION OF SENTENCING PRINCIPLES The Westfair principles

Size of the business and degree of organizational sophistication and scope and value of the venture [ 16 ] Norwood is a one-person operating corporation for its principal, Mr. Bruce Farbacher, with no other employees. It has been in business in the Saskatoon area for approximately 12 years acting in the capacity of a contractor and developer working on one to two building projects at a time, on a yearly basis. Capella is a local Saskatoon cabinetry business employing six people on average on an ongoing basis. The construction site involved an acreage residential home build.

The magnitude of the project was not disclosed. Gravity of the offence [ 17 ] The gravity of the offence is the most serious involving a fatality. Degree of risk and the extent of the danger and its foreseeability [ 18 ] Several potential hazards existed on the date of Mr. Hartell’s death. The outside temporary stairs from the ground level to the main entrance had been removed. This necessitated the use of a ladder from the basement as a means of access and egress to the main floor. Further, several large openings existed on the main floor level to the concrete basement below.

A fall from a ladder in such circumstances or through the unguarded opening could cause serious injury or death and as such was a reasonably foreseeable harm. Equally so, failure to enforce the use of hard hats or other PPE created a foreseeable risk of harm in these circumstances. Maximum penalty under statute [ 19 ] As a result of the amendments of the Act in 2014 the maximum fines for corporations where a death is involved was raised from $300,000.00 to $1.5 million dollars. Range of fines for similar offences [ 20 ] Fines range from $10,000.00 to $420,000.00 for offences causing death in the workplace.

A recent decision, R v Langenburg Redi-Mix Ltd. [7] (currently under appeal) assessed a fine of $560,000.00, inclusive of surcharge, for a workplace death which is the highest amount levied in the province to date.

Both counsel acknowledged the highly individualized sentencing process in these cases due to the wide range of variables concerning the circumstances of the offence and the structure and scope of business of the offender. [ 21 ] Further, as pointed out by Crown counsel, many fines imposed were arrived at by way of joint submission, no doubt involving the usual quid pro quo considerations inherent in such pre-sentencing discussions.

As a result, their precedent value is somewhat diminished for contested sentence hearings as is the case here. [ 22 ] The following examples of worker injury and death cases involving small to mid-size businesses demonstrates the wide disparity in sentences imposed:

a) R v Pederson, Sr., 2000 SKQB 255 • Worker suffocated when walls of trench collapsed in on him; • One person business with two employees; • $9,000.00 contract to do the work; • $95,000.00 fine reduced on appeal to $40,250.00, total fine and s/c.

b) R v Riemer , 2012 SKPC 119 , 402 Sask R 214 • Two persons killed and several injured resulting from accused snagging an underground natural gas line with backhoe; • Small, one-person operation which occasionally hired sub-contractors; • No type of organizational structure or sophistication to business; • Labelled a “mom and pop operation” by judge; • $28,000.00 total fine and s/c.

c) R v J and D Sewer Services

(1984) Ltd ., 2016 SKPC 125 • Two employees died from hydrogen sulphide toxicity after entering sewer manhole (tragically, the second as a result of attempting rescue of the first); • Very small one man business described by judge as “mom and pop operation” with limited ability to pay; • $42,000.00 fine and s/c.

d) R v Shercom Industries Inc., 2018 SKPC 3 [ Shercom Industries ]

• Worker killed after becoming entangled in conveyor belt mechanism; • 47 employees and designated management team; • Classified by judge as “mid-sized company with some organizational sophistication”; • $420,000.00 total fine and s/c.

e) R v Carrier Forest Products Ltd ., 2019 SKQB 84 • Employee killed by becoming entangled in wood chipper machinery; • 136 employees however at the time of the incident, the company was operating at significant losses to the extent that the sentencing judge labelled it “insolvent”; • $87,500.00 total fine and s/c.

f) R v Fire Sand Real Estate Ltd ., 2019 SKPC 54 , [ Fire Sand Real Estate ] • Tradesman severely injured when knocked from scissor-lift by nearby crane; • Company employed 16 people and was experiencing financial losses requiring monthly cash injections; • Not yet turned a profit according to the owners; • Described by judge as “relatively small, family-owned business that is part of a larger family-owned enterprise. . . [which] does not fall into the category of a “mom and pop operation”; • $84,000.00 total fine and s/c.

g) R v C & D Electric Ltd . (10 January 2020) Estevan, CRM 28/2017, Chow J (Sask QB) • Worker died as a result of trench cave-in; • Small business operation, very similar circumstances to Pederson, supra ; • $10,000.00 total fine and s/c.

h) R v Lorne Tardif Operating o/a Elite Eavestroughing (3 October 2018) Moose Jaw, Kovatch J (Sask Prov Ct) [ Tardif ] • Employee fell from garage roof while installing eavestroughing sustaining a fatal head injury; • One person unincorporated business with small number of employees; • $23,800.00 total fine and s/c. (Joint Submission)

i) R v 101186505 Saskatchewan Ltd . (22 August 2017) Swift Current, Bazin J (Sask Prov Ct) [ R v 101186505 ] • Employee killed in a construction packer rollover; • Company operated by husband and wife with four full time employees and two to three seasonal employees; • Gross revenue in 2016 in excess of $1 million with net corporate income of $6,000.00; • $70,000.00 total fine and s/c. (Joint Submission)

j) R v Cowan Bros. Transport Ltd . (21 September 2017) Montreal Lake, Harradence J (Sask Prov Ct) • Trucker killed when caught underneath his semi being pushed from the mud; • Family owned operation with limited number of employees; • $84,000.00 total fine and s/c. (Joint Submission)

k) R v Brad Hammond Construction Ltd . (24 January 2018) Carlyle, Wiegers, J (Sask Prov Ct) ( Brad Hammond Construction ] • Worker paralyzed from waist down as a result of falling from roof of shed being constructed; • Construction company employing roughly 15 workers; • Described as a “small tight knit company”; • $140,000.00 total fine and s/c. (Joint Submission)

l) R v Carmont Construction Ltd . (12 July 2018) Saskatoon, Metivier J (Sask Prov Ct) [ Carmont ]

• Worker killed by concrete sound barrier slab being unloaded from truck; • General contracting company employing 15 to 25 staff; • $80,000.00 total fine and s/c. (Joint Submission)

m) R v Realistic Roofing Inc . 2007 SKPC 23 , 296 Sask R 46 • Employee paralyzed from chest down when unsecured hoist fell onto him from the roof; • One-owner company employing “up to 5 or more people”; • Retained earnings of company in 2006 totalled $101,161.00; • $19,250.00 total fine and s/c.

n) R v T & L Den Brok Enterprises Inc., 2014 SKPC 97 , 444 Sask R 73 [ T & L Den Brok ] • Employee changing tractor tire was paralyzed when tractor fell as a result of failure of the hydraulic jack; • Local business employing 13 people generating $325,000.00/year revenue; • Sentencing judge noted that employer made significant changes post-incident including hiring outside safety consultants and expending approximately $100,000.00; • $30,800.00 total fine and s/c.

o) R v Rosin , 2005 SKQB 537 , 273 Sask R 114 [ Rosin ] • Part-time employee killed when bucket lever arms of skid-steer dropped unexpectedly; • Retired 75 year old farmer who operated small snow removal business; • One to two employees; • Net annual income less than $10,000.00; • $34,500.00 fine reduced on appeal to $17,250.00, total fine and s/c. Ability to pay and potential impact of the fine on the business [ 23 ] Defence counsel submits that Norwood’s income and financial status varies widely year over year as reflected in its 2019 and 2020 financial statements provided to the Court.

In 2019, Norwood showed a gross profit reflecting a net income of $519,972.00 (before taxes of $53,385.00). In 2020, by comparison, the gross profit realized was only $29,867.00 with a net loss of income shown as ($30,318.00). [ 24 ] However, defence counsel also acknowledged that “. . . much of Norwood’s balance sheet is illiquid and tied up in real estate pending sale and in-work progress”. It is difficult in the circumstances to accurately gauge Norwood’s true ability to pay without benefit of year over year comparisons and up-to-date status of ongoing projects.

What is shown however, is that Norwood’s retained earnings increased from $284,938.00 in 2019 to $566,313.00 in 2020. [ 25 ] Capella’s financial statements for 2019 and 2020 show an increase in revenues from $752,327.00 in 2019 to $941,560.00 in 2020. The corresponding net income before taxes of the company increased from a loss in 2019 ($32,471.00) to a profit of $110,904.00 (after tax adjustment) in 2020. Expenses for wages and benefits for each year increased from $251,736.00 in 2019 to $283,832.00 in 2020. Of these amounts, no breakdown is shown of wages paid to the company’s principal(s).

Previous offences [ 26 ] Neither Norwood or Capella have any previous convictions or occupational health and safety citations. Degree of fault (culpability) or negligence of the employer [ 27 ] Norwood, as contractor responsible for the oversight of the entire project, had a significant responsibility for overall safety to the onsite workers. The size of the business venture of one, and possibly two, builds a year would mean that Norwood would have ample time to devote to daily onsite inspection.

The Agreed Statement of Facts noted that Norwood relied to a great extent on subtrade communication from the job site which was inconsistent and at times non-existent. [ 28 ] In Fire Sand Real Estate , the role that the contractor plays in employee safety was described in para. 27 (viii): The liability for workplace safety might be pictured as a pyramid. The owner or prime contractor is at the top of this pyramid followed by the employers, then the supervisors, and finally the workers.

This may vary depending on the fact-specific and worksite-specific factors; however, the worker will invariably be in the bottom row of the pyramid of responsibility. And further in the paragraph: Imperial Oil Ltd. v Ontario (Ministry of Labour), 1993 , CarswellOnt 5401 at para. 250 :

. . . the purpose of requiring a [prime contractor] to have separate and distinct responsibilities from those of an employer is to ensure there is an overall control of the safety aspects of the project. [ 29 ] Defence counsel stresses that Norwood’s culpability should be reduced because this was not a situation where no stairs were put in place but rather that the existing stairs had been removed without Norwood’s knowledge.

As noted however, the culpability lies in the failure to regularly attend to ensure all safety measures are in place and being followed, including the use of PPE, exacerbated by the very small number of ongoing projects to supervise – possibly only one in this case. [ 30 ] As far as Capella is concerned, issuing PPE but not making its use mandatory is only marginally better than not providing it at all. In this case, Capella left PPE use to the discretion of the employees, who, no doubt in many instances would opt for comfort and convenience in choosing not to wear safety equipment – particularly hard hats.

Many hazards were flagged on this job site which could be inherent in most, if not all, new build constructions as work progressed to completion. In such circumstances, wearing PPE should be mandatory, not optional. [8] Contributory negligence of another party [ 31 ] The sub-contractor, Rempel , removed the stairs providing access and egress to the house. Although this perhaps laid the groundwork for the fatal mishap, there is not sufficient nexus to the ultimate harm suffered to impute contributory negligence to Rempel , nor was any argument made by counsel regarding same.

Similarly, no suggestion was made that the actions of Mr. Hartell were contributorily negligent. Number of breaches – isolated or continuing over time [ 32 ] There is no evidence before the Court that there were any ongoing safety breaches by Norwood or Capella.

Employer’s response [ 33 ] There is no evidence of any remedial action taken to improve safety conditions or policies by either Norwood or Capella since this incident occurred. [ 34 ] As the Court noted in R v Basic Truck and Repair Inc [9] at paras 29 and 30 , this is a significant factor to be considered in the sentencing process: [29] Surprisingly, there is no indication in the Agreed Statement of Facts or counsel submissions as to any steps taken post-incident to improve safety protocols or equipment at the defendant’s business.

This must be considered a significant component of the sentencing process. [10] A heavy fine may serve to satisfy specific, and more importantly, general deterrence but equally important, what steps are being taken to ameliorate or eliminate the safety risks that caused or could cause future harm to the employees? Without this, are the true objectives of the Act being met?

In the Court’s view, much more emphasis must be placed on this aspect to achieve meaningful and lasting employee protection. [30] Perhaps this sentiment was most eloquently expressed in a Victim Impact Statement by a mother who lost her 19 year old son in a workplace fatality: [11] I think the important thing our society can get out of this tragedy is how to make workers safety and training a priority, especially for young workers and those working jobs with high risks. Not one person should die on the job. . .

I want to get the message out there that today is about Austyn, but it is also about the importance of safety and the importance of employers taking responsibility. To me, today is about accountability to society and the loved ones left behind. . . Austyn had the right to go to work. He had the right to work in a safe environment, to be properly trained, to have his employer keep him safe. He had the right to return home safe after work every night. After Austyn’s death and looking into the statistics on young workers’ injuries and death, the numbers say – the numbers are sad and scary.

We need to focus on proper training and teaching all employees and employers that this is a priority. [ 35 ] In many of the authorities cited in the present case, the actions taken by the employer post-incident were considered to be a relevant factor in sentencing. [12] Prompt admission of guilt and early entry of guilty plea [ 36 ] Both parties have entered guilty pleas to the charges. No suggestion was made that these were not timely in the circumstances. VI APPROPRIATE DISPOSITION [ 37 ] Crown counsel suggests there is an upward trending in Saskatchewan for OHS fines.

Support for this can be found in the judicial comments in Fire Sand Real Estate, and Brad Hammond Construction, supra, [13] citing, inter alia, the significant increase in the maximum fines in legislative amendments of 2014. [ 38 ] Meschishnick, J in Carrier at paras. 35 and 36, stated however, a legislative increase in maximum fines alone does not signal an increase for fines generally: [35] When, in a legislative amendment, the minimum sentence is not changed or a range provided but the maximum fines 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. [ 39 ] It appears, nonetheless, that the issues involving worker safety have been ongoing for many years and are continuing unabated to any significant extent.

No doubt profit motive and poor employer foresight will continue to play a prominent role in accident causation, which, as the cases universally endorse, is best addressed by general deterrence.

This will necessitate higher fines over time, hopefully in tandem with increased education and inspection, until real improvement is realized. [ 40 ] Crown counsel strongly urged the Court to consider “time to pay” as a proper sentencing principle when determining the ability to pay, rather than only considering time to pay once the fine has been levied. [ 41 ] On this point, Meschishnick, J in Carrier at para. 53 states: [53] While there are principled arguments on each side of this debate, I need not decide in this case whether sound sentencing principles allow a sentencing judge to consider time to pay when determining an offender’s ability to pay or whether that is a consideration that arises only after the amount of a fine is imposed. [ 42 ] The position of this Court is that time to pay ought not to factor into the mix in determining quantum of the fine or ability to pay.

Rather, the preferred avenue is to consider all of the proper sentencing principles as pronounced in the legislation and case law in coming to an appropriate fine before any consideration of extending the option of time to pay is entertained. [ 43 ] Crown and defence are miles apart in their sentencing positions. Regarding Norwood, Crown counsel seeks a fine of $175,000.00, inclusive of surcharge and for Capella, $70,000.00 inclusive of surcharge. Defence submits that fines in the range of $25,000.00 - $30,000.00, inclusive of surcharge, are appropriate for both Norwood and Capella.

Norwood [ 44 ] Norwood, as prime contractor, was responsible for the safety of the entire work site. This is a huge responsibility given the number of sub-trades and construction workers required to be onsite on a daily basis to complete the project. The Crown contends that accordingly, Norwood’s culpability must be seen as high for failing in this regard. [ 45 ] Defence counsel argues that there should be reduced culpability on Norwood in this instance because it was not informed that the outside stairs had been removed by Rempel .

Therefore, it was not a disregard of the rules but rather just a lack of information on their part. [ 46 ] Norwood’s culpability however lies in its own lack of oversight of the project. Had there been continuous daily site inspection, Norwood would not have to rely upon sub-trade communication which it admitted, in any event, was inconsistent and sometimes non-existent.

Further, the fact that Norwood only undertakes one or two projects at a time would mean that daily onsite attendance would not have been an onerous endeavour. [ 47 ] Norwood is a one-person operation involved in one or two construction projects a year. Long term financial information was not provided to best determine the year over year overall income generated by Norwood in assessing ability to pay. The financial statements for 2019 and 2020 show $519,972.00 income (before tax) and a net loss of ($30,318.00), respectively.

The wide fluctuations can best be explained by the fact the company’s financial position cannot be accurately assessed until their ongoing projects are completed and liquidated. Retained earnings however rose from $284,938.00 in 2019 to $566,313.00 in 2020. Notwithstanding the irregular fluctuations in income, it is apparent overall that Norwood is a solid business enterprise. [ 48 ] No evidence was put forward of any post-incident safety improvements that Norwood has implemented. Firm communication and inspection protocols would be essential to help prevent any future injury or loss of life on these projects.

As well, as prime contractor, initial and ongoing meetings with onsite sub-trades to ensure PPE is mandatory with their workers would greatly enhance worker safety. [ 49 ] In conclusion, balancing the paramount consideration of general deterrence with all of the foregoing sentencing principles set out, the Court determines that a fine of $65,000.00 plus surcharge of $26,000.00, totalling $91,000.00 is the appropriate disposition in these circumstances. Capella [ 50 ] The culpability of Capella lies in its lack of enforcement of PPE use on the job site by its employees.

Employers who enforce mandatory PPE use may not be universally popular with employees however, it is undeniable that workplace accidents will continue to occur and that these measures would, at least, significantly decrease the likelihood of serious injury or death. [ 51 ] Again, like Norwood, no evidence was placed before the Court of any improvement to safety protocols or training implemented by Capella following the death of Mr. Hartell.

As discussed previously, fines alone will not ensure that maximum effort is being made to protect those who expect and deserve the sanctity of a safe work environment. [ 52 ] Capella is a locally owned business operation employing six people on average. An increase in revenues of nearly $200,000.00 from 2019 to 2020 accounted for a net income rising to $110,904.00 from a loss position of ($32,471.00) in 2019. Although it is difficult to project such sustained income growth on a one-year comparison, the business appears nonetheless to be a financially stable company.

[ 53 ] In conclusion, balancing the paramount consideration of general deterrence with all of the foregoing sentencing principles set out, the Court determines that a fine of $40,000.00 plus surcharge of $16,000.00, totalling $56,000.00 is the appropriate disposition in these circumstances. [ 54 ] Time to pay is extended to 36 months for both defendants to allow them the opportunity to absorb this expense more evenly over time, should they so require. ____________________________ R.D. Jackson, J