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
Dentons is a global firm driven to provide you with the
competitive edge in an increasingly complex and interconnected
marketplace. We were formed by the March 2013 combination of
international law firm Salans LLP, Canadian law firm Fraser Milner
Casgrain LLP (FMC) and international law firm SNR Denton.
Dentons is built on the solid foundations of three highly
regarded law firms. Each built its outstanding reputation and
valued clientele by responding to the local, regional and national
needs of a broad spectrum of clients of all sizes –
individuals; entrepreneurs; small businesses and start-ups; local,
regional and national governments and government agencies; and
mid-sized and larger private and public corporations, including
international and global entities.
Now clients benefit from more than 2,500 lawyers and
professionals in 79 locations in 52 countries across Africa, Asia
Pacific, Canada, Central Asia, Europe, the Middle East, Russia and
the CIS, the UK and the US who are committed to challenging the
status quo to offer creative, actionable business and legal
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances. Specific Questions relating to
this article should be addressed directly to the author.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Join our partners Karen Martin and Ryan Chalmers at the Pacific Business & Law Institute’s program, where they will be presenting a session titled "Procurement: Compliance with AIT, NWPTA, TILMA, NAFTA, TPP, CETA and the Statutes." This forum assembles leading government advisors to provide insights on key issues in local government today.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).