Sentencing of Contractor with Minor Role in Project: Deterrence is Key but Size Matters

by Dentons

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This post follows a previous post of June 22, 2012, discussing the case of an independent contractor who had been working amongst a group of other parties on the demolition of a few buildings in downtown Nipawin, Saskatchewan when he snagged a gas riser with his backhoe. This led to the line being pulled from the main which in turn caused gas to seep into through the ground and pool in the basement of a nearby butcher shop. Shortly thereafter the gas was ignited by a piece of machinery in the basement and an explosion occurred killing two people and seriously injuring five others. The contractor was found guilty of two Occupational Health and Safety Act violations. Following a sentencing hearing, the Saskatchewan Provincial Court fined the contractor $28,000 total in fines and surcharges.

The Court held that the “Kienapple” principle, which prohibits multiple convictions for the same act, did not apply because there was more than one wrongful act in this instance. Had the “Kienapple” principle applied the Court would have stayed one of the counts. In coming to its conclusion the Court found that there was an additional element in one offence that was not contained in the other. The Court characterized the offence under count 1 as involving a “lack of a physical act of hand digging to expose a riser,” whereas count 2 dealt with “doing the complete undertaking, including the digging of the gas line, in an inappropriate fashion” (emphasis added).

In this instance counsel disagreed over which sentencing provisions in the Act applied. Specifically at issue was whether the Court had made a causal link between the actions of the contractor and the death and serious injury that occurred. If it had, the maximum penalty under the Act was $300,000. In the absence of a causal link the maximum penalty under the Act was $10,000 for a first offence. The Court found that it was “abundantly clear” that there was a causal link between each count and the corresponding loss of life and serious injury that occurred; therefore the maximum penalty that the contractor was facing was $300,000.

In assessing the appropriate sentence for the contractor in this case, the Court affirmed that the primary objective of these types of offences is to protect employees and the general public. Following previous jurisprudence, the Court opined that such objectives are best achieved by focusing on general deterrence as the main sentencing principle. The Court also acknowledged other sentencing factors that it would apply. Notably, of these factors, the size and sophistication of the contractor’s business was taken into consideration by the Court. The Court noted that the contractor’s only direct “employee” was the contractor himself; he occasionally brought other individuals in for a job, as he did in this case. The Court described the business as a “mom and pop” operation, noting that the contractor’s primary occupation was farming. The Court was concerned that a “significant fine would essentially wipe out the business”.

The Court also found the fact that the contract resulted in little profit to the contractor had no relevance in sentencing. Aggravating factors weighing against the contractor included the inherent risk and danger involved in the operation, as well as the contractor’s high degree of fault. In the Court’s view, there was a “distinct lack of care in conducting the entire operation” and a “general lack of supervision”.

The Crown sought a fine in the range of $35,000 and the contractor’s position was that a fine of $1,000 or $2,000 would be appropriate. After considering the factors outlined above, among others, the Court found that a global fine of $20,000 plus a surcharge of forty percent was appropriate in the circumstances. The Court was presented with prior jurisprudence that outlined a range of fines from $6,000 to $35,000, which places this case in the average to higher end of the spectrum.

R. v Riemer, 2012 SKPC 119 (CanLII)


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.

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