Lack Of Remorse A Key Factor In Decision To Levy Hefty Fine In Non-Fatal Accident

more+
less-
more+
less-
Explore:  Workplace Injury

Earlier this year we posted a blog surveying the trend in 2012 for Courts to levy increased fines in non-fatal accident cases. Recently in R v. Canadian Consolidated Salvage Ltd. (Clearway Recycling), 2013 ABPC 120, this trend continues with the Alberta Court levying a fine of $100,000 (not including the mandatory victim fine surcharge) against Canadian Consolidated Salvage Ltd. (Clearway Recycling) (“Canadian Consolidated”) in a case involving a worker’s fall from a second story mezzanine that left the worker with serious (but non-fatal) injuries.

At trial, the Court held that it was “abundantly clear” that Canadian Consolidated had not complied with its obligations under the Occupational Health and Safety Act (the “Act”) in that it had no safety plans, safety documentation, hazard assessment, emergency response plan or fall protection procedures in place for any of its work sites. The Court further commented that the attitude displayed throughout trial by the principals of Canadian Consolidated evidenced a complete disregard for the health and safety of its workforce. In the result, Canadian Consolidated was convicted of five offences under the Act.

In its decision on sentencing, the Court highlighted that a principled approach must be used in constructing an appropriate penalty and considered the following factors: Nature of the Victim, Impact on the Victim, Degree of Negligence, Compliance with the Regulatory Regime, Remorse, Prior Record, Industry Context or Standards, Economic Impact, and Reasonable Foreseeability.

In applying these factors, the Court held that a significant fine was warranted in this case considering the lack of any effort made by the organization to meet its obligations under the Act, the fact that the principals of Canadian Consolidated “never appeared to show any interest” in respect of safety compliance and that this ultimately led to a very serious injury to one of its workers. That the corporate officers did not display any remorse was also cited as a key factor in justifying the hefty penalty in this case.

Of note, the Court considered the effect a significant fine would have on the financial status of the organization and confirmed that higher fines will be justified where the degree of negligence is high or the result of the breach is serious in order to ensure that the fine has a deterrent effect on the organization as well as on the corporate community as a whole. It further confirmed that while evidence of the financial status of the company will be relevant in determining the appropriate sentence, ability to pay should not reduce a sentence that is proportionate to the offence. As such, the Court held that $100,000 was appropriate and made no concessions for Canadian Consolidated’s financial status.

This case is indicative of the current trend for increased fines, regardless of whether the accident results in death, particularly where the organization blatantly disregards its health and safety obligations under the Act and the principals of the organization are not, in the Court’s view, sufficiently repentant. It not only underscores the importance of ensuring compliance with the Act but also confirms that the Court will be interested in the attitude of the organization’s corporate officers towards the health and safety of its workforce when imposing a sentence.

For more information see: R v. Canadian Consolidated Salvage Ltd. (Clearway Recycling), 2013 ABPC 120

- See more at: http://www.occupationalhealthandsafetylaw.com/lack-of-remorse-a-key-factor-in-decision-to-levy-hefty-fine-in-non-fatal-accident-case#sthash.DPzhEdT8.dpuf

 

Earlier this year we posted a blog surveying the trend in 2012 for Courts to levy increased fines in non-fatal accident cases. Recently in R v. Canadian Consolidated Salvage Ltd. (Clearway Recycling), 2013 ABPC 120, this trend continues with the Alberta Court levying a fine of $100,000 (not including the mandatory victim fine surcharge) against Canadian Consolidated Salvage Ltd. (Clearway Recycling) (“Canadian Consolidated”) in a case involving a worker’s fall from a second story mezzanine that left the worker with serious (but non-fatal) injuries.

At trial, the Court held that it was “abundantly clear” that Canadian Consolidated had not complied with its obligations under the Occupational Health and Safety Act (the “Act”) in that it had no safety plans, safety documentation, hazard assessment, emergency response plan or fall protection procedures in place for any of its work sites. The Court further commented that the attitude displayed throughout trial by the principals of Canadian Consolidated evidenced a complete disregard for the health and safety of its workforce. In the result, Canadian Consolidated was convicted of five offences under the Act.

In its decision on sentencing, the Court highlighted that a principled approach must be used in constructing an appropriate penalty and considered the following factors: Nature of the Victim, Impact on the Victim, Degree of Negligence, Compliance with the Regulatory Regime, Remorse, Prior Record, Industry Context or Standards, Economic Impact, and Reasonable Foreseeability.

In applying these factors, the Court held that a significant fine was warranted in this case considering the lack of any effort made by the organization to meet its obligations under the Act, the fact that the principals of Canadian Consolidated “never appeared to show any interest” in respect of safety compliance and that this ultimately led to a very serious injury to one of its workers. That the corporate officers did not display any remorse was also cited as a key factor in justifying the hefty penalty in this case.

Of note, the Court considered the effect a significant fine would have on the financial status of the organization and confirmed that higher fines will be justified where the degree of negligence is high or the result of the breach is serious in order to ensure that the fine has a deterrent effect on the organization as well as on the corporate community as a whole. It further confirmed that while evidence of the financial status of the company will be relevant in determining the appropriate sentence, ability to pay should not reduce a sentence that is proportionate to the offence. As such, the Court held that $100,000 was appropriate and made no concessions for Canadian Consolidated’s financial status.

This case is indicative of the current trend for increased fines, regardless of whether the accident results in death, particularly where the organization blatantly disregards its health and safety obligations under the Act and the principals of the organization are not, in the Court’s view, sufficiently repentant. It not only underscores the importance of ensuring compliance with the Act but also confirms that the Court will be interested in the attitude of the organization’s corporate officers towards the health and safety of its workforce when imposing a sentence.

For more information see: R v. Canadian Consolidated Salvage Ltd. (Clearway Recycling), 2013 ABPC 120

Topics:  Workplace Injury

Published In: Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dentons | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »