Case summaries – convictions/guilty pleas
R v CFG Construction, 2019 QCCQ 1244
- Death of worker after truck lost control, employer fined $300,000 and subject to a probation order for three years.
In September 2012, a truck driver lost control of his truck on a construction site. He died as a result of the injuries he sustained. The employer was convicted of criminal negligence causing death arising from the failure to properly maintain their heavy truck fleet. Faulty brakes were blamed for the worker’s death. The maintenance and condition of the breaking system were at issue and found to be irresponsibly maintained.
In its decision, the court noted that the employer had an attitude of detachment, indifference and carelessness in the face of maintenance of its trucks. They paid little heed to compliance with regulatory directives and disregarded safety concerns beyond mere negligence.
GFC Construction had numerous regulatory offences for safety issues and had been warned by authorities and courts of the need to make changes to the dangerous practices at the workplace. The court considered the apathy from the company in light of other directions to correct issues in the workplace as well as the high risk of recurrence when assessing the case.
The employer was fined $300,000 and subject to a three-year probation order which included the following provisions:
- Retaining an external consultant to ensure compliance with health and safety laws and regulations;
- Annual Inspections must be performed by the consultant and the Société de l’assurance automobile du Québec;
- Mandatory annual training for employees on operation of heavy vehicles; and
- Various administrative and record keeping obligations.
R v Rainbow Concrete (2019)
- Death of worker operating dump truck, archway collapsed crushing cab and employee, employer pled guilty to criminal negligence causing death, employer fined $1000 plus $200,000 victim surcharge.
In February 2017, Rhéal Dionne was operating a dump truck on Rainbow Concrete property to haul snow. He drove through an archway and the structure collapsed onto the truck. Debris fell through the truck’s cab and crushed Dionne.
Charges were laid under sections 22.1 and 217.1 of the Criminal Code against Rainbow Concrete. Charges were also laid against a supervisor. Rainbow Concrete pleaded guilty to the charges and entered into a plea agreement that included a fine of $1000 and a victim surcharge of $200,000. Charges against the supervisor were dropped.
R v Century Mining Corp, CQ, No 615-01-021168-136 (2017)
- Worker injured and blinded after being crushed by a truck, employer fined $200,000 despite declaring bankruptcy in 2012
Century Mining Corp operated a mine in Val-d’Or, QC. In December 2007, Gerald Miville was performing drilling around the wall of a mine in the dark when he was crushed by a truck. No reflective gear was provided to the worker and the truck driver was not informed that work was being performed in the area. The worker was blinded, suffered crushed bones and had to have several organs surgically removed as a result of the incident. The worker testified that he had sought protective equipment from the warehouse before performing the work, in the form of reflective or high-visibility gear, but none was available for use.
In 2012, Century Mining declared bankruptcy. The prosecutor, however, was of the opinion that:
We really want the message to be clear, that just because a company is bankrupt doesn’t mean we won’t pursue a criminal prosecution against them … We want to avoid a company saying to itself based on the example of Century Mining that “good, that’s the solution, I’ll declare bankruptcy, they can’t prosecute me”. [Translation]
In 2013 the company was charged with criminal negligence causing bodily harm, and found guilty on July 21, 2017. They were fined $200,000 despite having declared bankruptcy five years earlier. The Trustee in Receivership stated that although the government has been added as an unsecured creditor to recover the fine, repayment of secured creditors will mean that no money will remain to pay it.
R v Detour Gold Corporation, 2017 ONCJ 954
- Death of a worker due to acute cyanide intoxication, employer fined $1.4M + $420,000 victim surcharge and $805,333 restitution to widow
Detour Gold Corp operates a gold mine northeast of Cochrane, Ontario, and employs approximately 1,000 people. Part of the processing of the ore includes the use of an “InLine Leach Reactor” (an intensive cyanide reactor) which uses sodium cyanide to leach gold from the ore. The reactor is locked up and requires written authorization from management along with a security escort to access the enclosure.
In April 2015 a leak developed in the system. Several repairs were attempted during April and May. On June 3, 2015 Denis Millette was tasked with completing repairs, and was provided authorization to enter the enclosure. Between 11:23 am and 1:57 pm he worked on the repair. He wore only cloth coveralls and latex gloves as protective equipment. During the time he worked on the system he was exposed to cyanide, which came into contact with his skin. Millette died at 4:19 pm, the cause of death being recorded as “acute cyanide intoxication via skin absorption”.
Millette’s death was seen as avoidable, and was attributed to:
- The absence of proper personal protective equipment
- No standard operating procedure for maintenance work on the reactor
- The absence of properly trained emergency response persons
- The absence of an antidote kit and shower facilities
Onsite emergency service providers were not trained to recognize cyanide poisoning, and even if they had been, medical tools were not readily available.
The corporation pleaded guilty to charges under ss 220(b) (causing death by criminal negligence) and 22.1 of the Criminal Code. They were fined $1,400,000 + $420,000 (30% victim surcharge) and ordered to pay $805,333 in restitution to Millette’s widow (Millette’s future earnings until retirement), totaling $2,625,333.
R v Stave Lake Quarries Inc, 2016 BCPC 377
- Death of an untrained worker after being crushed by truck, employer fined $100,000 + $15,000 victim surcharge
SLQ operated a rock quarry in Mission, British Columbia. The employer hired 22-year old Kelsey Ann Kristian as a rock hauler operator, a Caterpillar 769B large truck. She had no prior experience driving trucks with air brakes. On her first day of work, she was shown how to drive the rock hauler by an experienced coworker. The coworker reviewed pre-check of the truck, the checklist binder and how to use the air brakes, parking brakes and tire chocks. There were no actual chocks, and instead the coworker’s practice was to use large rocks to chock the tires.
On May 17, 2007, Kristian’s second day of work, she was instructed to back up the rock hauler under an excavator, drive forward to unload the cargo and drive back for another load. That afternoon, the excavator broke down and the coworker told her to stop working. She parked the rock hailer on a 10% grade slope, using only the air brakes. She did not engage the parking brake nor chock the tires. After turning the engine off, the air pressure in the air brakes slowly bled off over a two hour period, and eventually the 30-ton truck began to roll down the slope.
Kristian hung off the door in an attempt to regain control of the vehicle; however, she could not open it because the handle was missing and it was secured with a bungee cord. The rock hauler drove over a berm on the passenger side, causing it to flip over onto Kristian, and crushed her to death.
The problems identified were:
- Hiring a 22-year old with no experience or license to drive a truck with air brakes
- Failing to properly train her how to drive and park the truck, and ensuring she was able to do so before allowing her to operate it
- Failing to provide tire chocks
- Failing to supervise her and ensure she had safely parked the truck
The corporation pleaded guilty to charges under ss 219 (criminal negligence), 22.1 and 217.1 of the Criminal Code. They were fined $100,000 with a victim surcharge of 15%, totaling $115,000.
R v Kazenelson, 2015 ONSC 3639; 2018 ONCA 77
- 4 dead and 1 injured worker after swing stage collapsed, project manager convicted personally and sentenced to 3.5 years on each of 5 counts to be served concurrently
Kazenelson was the project manager for Metron. Metron was previously fined $200,000 + $30,000 victim surcharge, appealed to $750,000 + $112,500 victim surcharge arising from the same facts. Metron was contracted to maintain the balconies of a residential building. Seven people, including Kazenelson, were working on a swing stage at the 13th floor when it collapsed. Five workers fell 100 feet, resulting in four deaths and one injury. The single worker who had been tied to a safety line was left dangling in the air, and Kazenelson, who had managed to grab the safety line before falling, climbed onto the 12th floor balcony.
The problems identified were:
- Only two lifelines were in place for 6 workers
- Only one worker was secured to a lifeline
- The swing stage was a new design that was not tested by an engineer, nor did it have a capacity sticker affixed to it
- The swing stage had defective welds
Kazenelson pleaded not guilty to 4 counts of criminal negligence causing death and 1 count of criminal negligence causing bodily harm. His defence rested on the arguments that 1) there was no way that he could have reasonably foreseen that the swing stage would collapse after only two months of use, and 2) that the workers themselves made the decision not to attach to a lifeline. The court disagreed, stating:
[146] The relevant question, therefore, is whether a reasonable project manager would have contemplated the risk of equipment failure “as part of the general risk involved” in failing to provide lifelines for workers on a swing stage suspended 100 feet or more above the ground. In my opinion, the only possible answer to that question is yes. The risk of equipment failure was not only an objectively foreseeable risk, it was virtually the entire reason why the provision of a fall arrest system was regarded as the fundamental rule of swing stage work. The failure of the swing stage, even if unexpected, was not an event that was outside the ambit of the general risk animating the requirement for a fall arrest system. It is not necessary that the precise cause of the failure have been foreseen.
In response to the second defence, the court held that not only did Kazenelson not ensure that sufficient lifelines were available, but also that “a victim’s contributory negligence is no answer to a charge of crime … it is generally no defence that the victim laid himself open to the act, or was himself guilty of negligence bringing it about” (at para 147).
Kazenelson was found guilty on all five counts of criminal negligence and sentenced to 3.5 years imprisonment for each, to be served concurrently. The conviction and sentence were upheld on appeal in R v Kazenelson, 2018 ONCA 77.
R v Metron, 2012 ONCJ 506; 2013 ONCA 541
This case consisted of the same facts as R v Kazenelson, above but the charges are against the company, Metron. The Ontario Superior Court originally fined Metron $200,000 in addition to a victim surcharge of $30,000. The Ontario Court of Appeal found the sentence manifestly unfit and increased the fine to $750,000 because the original fine was not proportionate to the gravity of the offence. The Court of Appeal noted several facts that justified the fine increase, including:
- This offence is amongst the most serious offences in the Criminal Code and carries a maximum penalty of life imprisonment for individuals
- The victims were young and had families, some with young children
- The respondent had been operating with faulty equipment for more than two months
- The original fine imposed did not sufficiently reflect the importance of worker safety and might have been seen simply as the cost of doing business
R v Scrocca, 2010 QCCQ 8218
Pasquale Scrocca owned a Quebec landscape company. In June 2006, Scrocca was moving soil with a backhoe when the brakes failed and pinned an employee against a wall, fatally injuring the worker. The Court found that the backhoe’s brakes were functioning at less than 30% capacity and the machine had not been serviced in five years. Scrocca received a two-year conditional sentence of imprisonment.
R v Transpavé Inc., 2008 QCCQ 1598
Transpavé operates a plant that manufactures concrete slabs and blocks. In October 2005, a worker was killed when a pallet loader’s grappling hook fell and crushed him while he was clearing boards that were jamming a conveyor. At the time, the emergency safety device had been unplugged and disabled, without the knowledge of Transpavé or its senior officers.
Upon a guilty plea, the Court fined the company $110,000 and imposed a victim surcharge of $10,000. The Court placed emphasis on the following facts for its sentence:
- The offender was a family-owned business with no previous occupational health and safety convictions
- The offender had demonstrated significant remorse and spent more than $750,000 on improving safety measures at the plant
- The $100,000 fine ensured the survival of the corporation and the continuation of the 100 jobs
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