Two recent cases prosecuted under the Canada Labour Code (the "CLC") identify mitigation as a factor to take into consideration when sentencing and the importance of a safety culture at the workplace. These cases are discussed as follows.
In R. v. Fraser River Pile & Dredge (GP) Inc., 2011 BCPC 111, a dredge worker was in the midst of a routine painting job when he placed himself in a location where there was a risk of being crushed. The worker was pinned and suffocated by machinery and died from his injuries.
The employer was charged with, and pleaded guilty to, an offence under the CLC for failure to install guards, guardrails, barricades and fences in accordance with prescribed standards.
The court agreed with the joint recommendation of the parties for a fine of $140,000. Noting the seriousness of a fatal accident, the court recognized that the employer "mitigated its behaviour to some degree" by taking immediate action to rectify deficiencies, increase worker education, cooperate fully with the investigation, and pleading guilty at an early opportunity.
In R. v. SSI Micro Ltd., 2008 NWTTC 6, two unsupervised employees were electrocuted and killed while erecting a tower near high voltage power lines. The employer did not have an employee safety program, safety protocol, or safety procedure manuals related to working in proximity to power lines. The employer did not typically engage in such work.
The employer pleaded guilty to failing to supervise the employees thereby failing to ensure their health and safety, in violation of the CLC. In determining the appropriate sentence, the court considered (among other things) the employer's culpability, its lack of prior record and past involvement with authorities, and acceptance of responsibility. The court found the circumstances in this case "particularly egregious" and imposed a fine of $150,000.