Canada: Escalating Penalties: Alberta OHS Convictions For 2012 - What Can Employers Expect For The Year Ahead?

Last Updated: March 18 2013
Article by Lindsay A. Mullen

A person who contravenes Alberta's Occupational Health and Safety Act, Regulations or Code is liable, for a first offence, to a fine of not more than $500,000 or imprisonment for a term not exceeding 6 months and, for a second or subsequent offence, to a fine of not more than $1 million or imprisonment for a term not exceeding 12 months.

In 2012, Alberta Courts imposed penalties for Occupational Health and Safety legislation violations in nine cases. Of the four cases involving fatalities, penalties against companies (including fines, alternative penalties and victim surcharges) ranged from $250,000 to nearly $1.5 million. Three of the four cases had penalties at the lower end of this range. The penalties for the five cases involving serious injuries ranged between $70,000 and $85,000, displaying an upward trend from prior years for fines in non-fatal cases.

The year 2012 represented the first time that a case achieved fines reaching the $1 million mark, and demonstrating a willingness by the court to render penalties dramatically increased from historical amounts for penalties in cases involving fatalities. The case of R. v. Perera Development Corp., Action No. 100171909P1, June 4, 2012, involved a dump truck driver who was fatally injured after removing debris from an excavation site when a 15 metre high wall of dirt and rock collapsed on him, crushing him inside of the cab of the truck. The prosecution charged two related companies as employer and/or prime contractor with numerous OHS violations, arguing that they cut corners to complete the construction project, despite having identified (but ignoring) a serious hazard associated with an improperly shored up wall of the pit. A Judge of the Alberta Provincial Court convicted the employer and prime contractor of multiple violations, deciding that they failed to exercised due diligence. The court expressed astonishment that two experienced construction companies would leave a steep 50 foot wall without any shoring whatsoever. Describing their conduct as "egregious and outrageous," the court noted that reasonable steps could have been taken to properly shore up the wall for relatively small amount of money compared to the overall cost of the project. The court concluded that although the companies had some safety procedures in place at the site, their systems were inadequate. The court fined Perera Development Corporation a total of $1.25 million plus a 15% victim surcharge. The court also fined Perera Shawnee Ltd. a total of $900,000 plus a 15% victim surcharge, for a total of $2,472,500 in penalties arising from the incident.

The trend continues. On January 24, 2013, SSEC Canada Ltd. was sentenced to a $1.5 million penalty, which was comprised of a $200,000 fine and a $1.3 million payment to the Alberta Law Foundation to be used to support an outreach and education program. The conviction arose as a result of a guilty plea by SSEC Canada Ltd. to three charges under Alberta's Occupational Health and Safety Act relating to the failure of the employer to ensure, as far as reasonably practicable, the health and safety of workers. The circumstances giving rise to the incident related to the work being performed on large metal storage tanks, which work had fallen behind schedule. In order to expedite progress, SSEC Canada proposed revised construction whereby the tanks' walls and roofs would be built at the same time. The prime contractor agreed to the revisions, but said the work should be done under its own construction management team which would supervise quality control and safety. Despite this direction, SSEC Canada began work using the new method before the prime contractor's team arrived on site, and even though the procedures had not yet been certified by a professional engineer. On April 24, 2007, about three weeks after SSEC Canada began using the new method, a roof collapsed when the wire cables holding it up snapped after being kinked and torqued in high winds. Two workers were crushed by falling steel and five other workers were injured.

It is noteworthy that in both the Perera and SSEC Canada cases, the circumstances involved fatal incidents where the hazards were specifically identified, but the implementation and following of proper safety measures were deliberately bypassed.

For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com

About Fraser Milner Casgrain LLP (FMC)

FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit: www.fmc-law.com

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