An Alberta employer has been sentenced to a fine of $80,000 plus
the 15% victim fine surcharge following a workplace incident which
occurred in 2011 at its distribution center.
A worker was injured while bending down under a conveyor to plug
in a portable weigh scale. As she bent down, she felt herself being
propelled violently backward. A subsequent investigation determined
that her hair had become entangled in the drive shaft under the
conveyor. She sustained numerous injuries, losing part of her thumb
and part of her hair.
At trial, the employer was convicted of two offences under the
occupational health and safety legislation, the court finding that
the employer had failed to establish the defence of due diligence.
In its sentencing decision, the court considered the employer's
safety policies and its corporate commitment towards safety to be
mitigating factors. However, the court noted that the employer had
been convicted for failing to use all reasonable measures to ensure
the safety of its workers who worked near the conveyor. Company
officials had failed to recognize, over a four year period, that a
large portion of the conveyor was unguarded. The court was also
critical of the training given to workers about the dangers of
conveyors. Thus, while the employer was concerned about safety, the
court found that it had not been vigilant enough.
The court also considered the impact of the incident on the
worker as increasing the gravity of the offence. However, the lack
of a guilty plea was not treated as an aggravating circumstance.
The court also inferred that the employer was remorseful based on
the steps it had taken following the incident, and considered that
a mitigating circumstance.
The court reviewed the sentencing jurisprudence but considered
this case to be unique in relation to the fact that the
employer's oversight took place over four years and caused
considerable pain and disfiguring injuries. Thus, a fine of $80,000
was considered appropriate.
This case serves as yet another example of the difficulty of
successfully establishing a due diligence defence. It is also a
reminder to employers to ensure they perform appropriate and
thorough safety inspections and consider all aspects of the
workplace that could potentially pose a danger to workers. This
decision also demonstrates that while sentencing precedents are
useful, the court is not bound by them and must consider all of the
circumstances of the case in determining an appropriate
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