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R. v. Broda Construction Inc., 2019 BCPC 31 (CanLII)

Date:
2019-03-13
File number:
32908-3-C
Citation:
R. v. Broda Construction Inc., 2019 BCPC 31 (CanLII), <https://canlii.ca/t/hz0tv>, retrieved on 2024-03-29

Citation:

R. v. Broda Construction Inc.

 

2019 BCPC 31

Date:

20190313

File No:

32908-3-C

Registry:

Cranbrook

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

Criminal Court

 

 

 

 

 

REGINA

 

 

v.

 

 

BRODA CONSTRUCTION INC.

 

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE W. LEE

 

 

 

 

 

Counsel for the Crown:

L. Winn

Counsel for the Defendant:

W. Smart, Q.C.

Place of Hearing:

Vancouver, B.C.

Date of Hearing:

January 15, 2019

Date of Judgment:

March 13, 2019


INTRODUCTION

[1]           On September 16, 2014, Mr. Neil Fadden and Mr. Larry Chorneyko, both employees of Broda Construction Inc., died as a result of a tragic accident at a worksite known as the Swansea Ridge Ballast Quarry, located near Cranbrook, B.C.

[2]           On October 26, 2018, Broda Construction Inc. (“Broda Construction”) entered a guilty plea to a charge that it did commit an offence contrary to section 37(2) of the Mines Act, RSBC 1996, chapter 293, by contravention of part 1.9.1 of the Health, Safety, and Reclamation Code for Mines in British Columbia (2008), by failing to take all reasonable and practicable measures to ensure that the workplace, Swansea Ridge Ballast Quarry, is free of potentially hazardous agents and conditions which could adversely affect the health, safety, or well-being of the workers, to wit: by creating and allowing employees to operate vehicles on a steep road grade.

[3]           This matter now comes before me for sentencing.

[4]           Pursuant to the provisions of the Mines Act in force at the time, the maximum fine is $100,000. The Crown takes the position that the imposition of the statutory maximum is the appropriate penalty. Broda Construction argues that the appropriate penalty is a fine of $10,000 to $20,000 and a charitable donation to an organization called Threads of Life in an amount of $30,000 to $40,000.

BACKGROUND

[5]           I will summarize the background based on a filed Agreed Statement of Facts.

[6]           Swansea Ridge Ballast Quarry is located approximately 12 kilometers southwest of Cranbrook, B.C. in the Moyle Range of the Purcell Mountains.

[7]           The quarry exists to provide crushed rock made to specification for use as railway ballast for Canadian Pacific Railway. Ballast rock is used to physically support the CP railway tracks in the region.

[8]           Broda Construction is the contract operator of the Swansea Quarry.

[9]           A conveyor approximately 510 meters in length was constructed at the quarry in 1996 along a single corridor for the purpose of moving crushed rock from the primary crusher at the top of the ridge to the main crusher plant at the bottom of the hillside.

[10]        On September 16, 2014, at approximately 1650 hours, Mr. Neil Fadden (Driver) and Mr. Larry Chorneyko (Passenger) attended the top of the Service Road in a Mack Mini diesel truck Unit # 133 (the “Truck”) to initiate repairs on a guide roller on the conveyor.

[11]        A service road (the “Road”) runs parallel to the conveyor down the hill.

[12]        The Road proceeds directly downhill at an average slope of 22.8% over its 510 meter length.

[13]        Mr. Fadden and Mr. Chorneyko drove the Truck approximately 60 meters down the Road where they then parked with the front of the Truck facing the conveyor.

[14]        For some unknown reason, Mr. Fadden and Mr. Chorneyko left the repair site in the Truck without having completed the repair.

[15]        At approximately 1705 hours the Truck was observed by another employee approximately ¼ of the way from the bottom of the Road travelling at a high rate of speed.

[16]        The Truck appeared to be out of control. It followed a generally straight line to the bottom of the Road where it went through a catch berm, inverted over a nine-meter vertical drop-off, and crashed into a rock terrace approximately 8 meters below.

[17]        The Truck landed on its roof, coming to rest upside down with significant damage to the cab and engine compartment.

[18]        Employees present on the mine site immediately responded to the crash.

[19]        Emergency Health Services Paramedics and Cranbrook Search and Rescue arrived on site between 1720-1733 hours. Paramedics were unable to detect any signs of life from either injured party. The truck’s occupants, Mr. Larry Chorneyko and Mr. Murray Neil Fadden, were pronounced dead at the scene.

[20]        Neil Fadden died of a cervical fracture.

[21]        Larry Chorneyko died from multiple blunt force traumas.

[22]        All injuries were caused by the crash.

[23]        No autopsy was performed on either of the victims.

[24]        Prior to the accident, Broda Construction had a history of compliance with inspection orders issued by the B.C. Mines Inspectors for the Swansea Ridge Ballast Quarry.

[25]        After the accident Broda Construction complied with orders by the Inspector of Mines, B.C. issued November 4, 2016. A summary of those orders includes the following:

1.            Amending their permit to refer to the installation of the ballast conveyor that resulted in the steep adjacent service roadway.

2.            Obtaining an independent engineering assessment of all roadways on the mine site, to include a design by a qualified professional of all roadways where the grade exceeds 5%.

3.            Requiring the permittee (Canadian Pacific Railway Systems) and manager to undertake an independent review and assessment of maintenance procedures for all mobile equipment.

4.            Requiring all employees to take training for safe working practices that must be developed and implemented, along with documentation for all training procedures and records to the satisfaction of the Chief Inspector of Mines. The training must include air brake operation and emergency procedures for any operations of vehicles equipped with air brakes.

[26]        The independent engineering assessment of all roadways was finalized in March 2017. Recommendations from the assessment included:

1.            Limit access to the conveyor access road to tracked vehicles only.

2.            Install devices, signage and gates to prevent wheeled vehicles from accessing the conveyor road.

3.            Install impact attenuators, such as sand barrels, near the end of the conveyor access road.

4.            Grade the road surface at certain points.

5.            Install arrestor beds and surfaces.

[27]        These recommendations were complied with.

[28]        The charge that Broda Construction has pled guilty to is a strict liability offence requiring Broda Construction to ensure compliance with the Act and Regulations.

[29]        The Crown is unable to prove beyond a reasonable doubt that the hazardous conditions which Broda Construction rectified were contributing factors to the deaths of the workers.

ANALYSIS

[30]        The Crown seeks the imposition of the maximum statutory fine of $100,000.

[31]        In light of the recent SCC decision in R. v. Boudreault, 2018 SCC 58, the Crown is not seeking the imposition of a victim fine surcharge pursuant to the Victims of Crime Act, [RSBC 1996] c. 478.

[32]        The Crown has referred me to the leading decision of R. v. Cotton Felts Ltd., 1982 CanLII 3695 (ON CA), which states:

The Occupational Health and Safety Act is part of a large family of statutes creating what are known as public welfare offences. The Act has a proud place in this group of statutes because its progenitors, the Factory Acts, were among the first modern public welfare statutes designed to establish standards of health and safety in the work place. Examples of this type of statute are legion and cover all facets of life ranging from safety and consumer protection to ecological conservation. In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all. To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute. Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence: see R. v. Ford Motor Co. of Canada Ltd. (1979), 1979 CanLII 2838 (ON CA), 49 C.C.C. (2d) 1 at p. 26, 5 M.V.R. 237, per MacKinnon A.C.J.O., Nadin-Davis, Sentencing in Canada (1982), p. 368 and cases therein cited.

[33]        This statement was adopted in the decision R. v. Fiesta Party Rentals (1984) Ltd., 2000 ABPC 218.

[34]        In British Columbia, the Cotton Felts decision was cited with approval in R. v. Abbott, 2008 BCCA 198, where the Court stated:

[32]  The sentencing principles applicable to public welfare offences are generally seen to be denunciation and deterrence.  The Ontario Court of Appeal expressed the guiding principles in R. v. Cotton Felts Ltd. (1982), 1982 CanLII 3695 (ON CA)2 C.C.C. (3d) 287 at 294-295:

In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest.  They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all.  To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations.  The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute.  Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence.  [….]

[….]  [In] R. v. Hoffmann-LaRoche Ltd. (No. 2) (1980), 1980 CanLII 2695 (ON SC)56 C.C.C. (2d) 563119 D.L.R. (3d) 27930 O.R. (2d) 461 […] Mr. Justice Linden […] stated the principles governing the amount of a fine as follows [at p. 570]:

[….]  The amount must be substantial and significant so that it will not be viewed as merely a licence for illegality, nor as a mere slap on the wrist.  The amount must be one that would be felt by this defendant.  It should also serve as a warning to others who might be minded to engage in similar criminal activity that it will be costly for them to do so even if they do not succeed in their illegal aims.

[….]

[In] R. v. Roussy, unreported, released December 15, 1977 [summarized 2 W.C.B. 72], […] the court stated:

But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the term deterrent in its widest sense.  A sentence by emphasizing community disapproval of an act, and branding it as reprehensible has a moral or educative effect, and thereby affects the attitude of the public.  One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.

This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare of the public.

[35]        I accept that the Mines Act and its related Regulations create public welfare offences aimed at protecting workers at mine sites. I also accept that the overriding sentencing principle in the case of a contravention of the Act and its Regulations must be deterrence and denunciation.

[36]        The Crown has referred me to a number of cases but I will only discuss some of them.

[37]        In R. v. Metron Construction Corporation, 2012 ONCJ 506, four men died and one was severely injured when their suspended platform fell. The company pled guilty to criminal negligence causing death for permitting too many people onto the platform, not having sufficient lifelines for the workers and permitting one worker to be under the influence of drugs while on the platform. The court imposed a fine of $200,000. In doing so the court took into account the level of fines assessed under the Occupational Health and Safety Act involving fatalities and also the corporate offender’s ability to pay.

[38]        The Metron Construction case was appealed to the Ontario Court of Appeal and is reported at 2013 ONCA 541. That decision states in part:

[79]  The Criminal Code offence engaged in this appeal is criminal negligence causing death.  It is one of the most serious offences in the Code. As stated by this court in R. v. L. (J.) (2006), 2006 CanLII 805 (ON CA), 204 C.C.C. (3d) 324 at para. 14, the offence of criminal negligence causing death is “at the high end of a continuum of moral blameworthiness”. A conviction for such an offence requires a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances: R. v. J. F., 2008 SCC 60 (CanLII), 3 S.C.R. 215, at para. 16 and R. v. R. (M.),  2011 ONCA 190 (CanLII)(2012), 275 C.C.C. (3d) 45,at para. 28.

[80]  The seriousness of the offence of criminal negligence causing death is reflected in the maximum punishment for such an offence – life imprisonment for an individual: s. 220(b).  If an offender is an organization, the quantum of the fine is unlimited: s. 735(1)(a).  This contrasts significantly with the OHSA provisions.

[81]  The presence of corporate criminal liability for criminal negligence in the Criminal Code is not intended to duplicate, replace, or interfere with provincial health and safety legislation. Rather, it is intended to provide additional deterrence for morally blameworthy conduct that amounts to a wanton and reckless disregard for the lives or safety of others: Minister of Justice, “Government Response to the Fifteenth Report of the Standing Committee on Justice and Human Rights”, Sessional Paper No. 8512-372-178 (2002).

[39]        The Ontario Court of Appeal went on to stress that conviction for criminal negligence was much more serious than a conviction under the Occupational Health and Safety Act. The court then considered the factors listed under Criminal Code sections 718 and 718.2 and increased the fine to $750,000.

[40]        Based on the comments of the Ontario Court of Appeal, I conclude that I must be wary of relying upon cases involving a charge of criminal negligence, given its focus on morally blameworthy actions or inactions. I will instead look for direction from cases that deal with public health and safety legislation, which typically involve strict liability offences such as in the case here.

[41]        In a number of the cases cited to me by Crown, the death of a worker was directly related to the failure of the employer. See for example the following cases:

                    R. v. Reliable Wood Shavings Inc., 2013 ONCJ 712

                    R. v. Garneau Inc., 2010 ABPC 84

                    R. v. Rosin, 2005 SKPC 69

                    R. v. Meridian Construction Inc., 2005 NSPC 40

                    R v. Canadian MDF Products Co., 2002 ABPC 82.

[42]        In each of these cases, the maximum fine was not imposed.

[43]        In the decision R. v. Hudson Bay Mining & Smelter Co. Ltd. [2001] M.J. No. 595, a series of explosions occurred at a mining site leading to the death of one worker and the hospitalization of 6 others. The Court did impose the maximum fine of $150,000 under the Workplace Safety and Health Act, emphasizing the goal of industry deterrence for unsafe workplaces. Unfortunately, particulars of the offender’s actions or lack of actions were not provided and so I am unable to determine the basis for assessing the maximum fine.

[44]        In the decision R. v. Surespan Construction Ltd., [2001] M.J. 100, an employee of Surespan fell off a work platform into the river and drowned. Surespan pled guilty to two contraventions of the Workplace Safety and Health Act Construction Industry Safety Regulations by failing to provide a guardrail on the platform and failing to have adequate rescue equipment on site. The maximum fine possible was $150,000 and Judge Stewart levied a fine of $75,000.

[45]        Judge Stewart was also the presiding judge in the decision R. v. Hudson Bay Mining & Smelting Co. Ltd., [2001] M.J. No. 595. At paragraph 7 of that decision, he refers to his decision in Surespan Construction and he states that the Surespan Construction decision was appealed and the fine reduced to $37,500. I have not been able to locate a copy of the appeal decision.

[46]        Prior convictions for similar offences will of course be a basis for a higher fine: see R. v. Canron Inc., 1996 CanLII 1240 (ON CA), [1995] O.J. No. 3543. However, the Crown has not alleged that Broda Construction has any prior convictions for a breach of any safety legislation.

[47]        No formal victim impact statements were provided to me. The Crown advises that the families of Mr. Fadden and Mr. Chorneyko remain in grief and are still trying to grapple with the consequences of this tragedy, which is understandable.

[48]        Counsel for Broda Construction has cited to me the following considerations:

1.            Broda Construction has a long-standing commitment to safety.

2.            The quarry access road had been in use for some 18 years without incident.

3.            At no time prior to September 16, 2014 did the Ministry of Mines inspector advise Broda Construction that the quarry road was too steep or unsafe to drive. Gordon Broda, President of Broda Construction, stated in a letter that it was only two years after the accident that this concern was raised and orders then issued by the Ministry of Mines.

4.            The cause of the accident remains unknown. There is no evidence of a mechanical failure in the truck carrying the victims. There is no evidence that the driver of the truck suffered some kind of medical emergency leading to the accident. There is no evidence that something at the work site led to the accident.

5.            As a result of the death of the two workers, Broda Construction has paid over $1 million for remedial costs due to the requirements of the Mines Inspector and the independent engineer. The site was also closed for a period of time costing Broda Construction lost revenue of over $1 million. Counsel argues that these are collateral consequences that should be taken into account, something that the Supreme Court of Canada recognized in the decision R. v. Suter, 2018 SCC 34.

6.            Gordon Broda has expressed remorse both personally and on behalf of the company, and has set out in writing an apology to the families of Mr. Chorneyko and Mr. Fadden.

[49]        In the circumstances, Broda Construction argues that the appropriate resolution is a fine of $10,000 to $20,000 and a charitable donation to an organization called Threads of Life in an amount of $30,000 to $40,000.

[50]        The Crown agrees that I have the jurisdiction to order as part of the sentencing that Broda Construction make a donation. Such an order was made in R. v. Garneau Inc., 2010 ABPC 84 at paragraph 31.

[51]        The website for Threads of Life provides this background information:

Threads of Life brings hope and healing to Canadian families who have been affected by a workplace fatality, life-altering injury or occupational disease. It is a national charity connecting more than 2,800 family members through one-on-one peer support, links to community support services, and the opportunity to take action to help prevent similar tragedies to other families.

Threads of Life was created in 2003 to fill a major gap in Canada’s health and safety and social systems. There was no “helpline” to call or place to go to find the kind of emotional support and caring often required to make it through the aftermath of a workplace fatality or severe injury/illness in Canada. The long-term emotional, societal, and financial consequences of this gap are enormous and evident. These consequences include psychiatric problems, stress-related physical health problems, substance abuse treatment, family stress, marital breakdown, suicide, loss of productivity, loss of personal income, increased social welfare costs, and more. This is a substantial and costly burden for every citizen and taxpayer, but one that can be significantly reduced. Threads of Life is a place where people can turn to help find the “cure” for workplace tragedy, which can only be accomplished through prevention.

DECISION

[52]        In the case of a breach of a public welfare offence, the primary consideration in sentencing is deterrence and denunciation.

[53]        The death of two valued workers, two persons with family and friends, suggests that the maximum fine possible should be levied.

[54]        However, there are also other factors I must consider. In the decision R. v. Canadian Pacific Railway, Jackson and McLelland, an unreported decision of The Honourable Judge Hewson dated September 6, 2018, Salmon Arm Registry No. 23273-2-C, the court stated at paragraph 10:

[10]  The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.  This holds true for regulatory offences like this one, as well as for criminal offences.

[55]        With that in mind, it is clear that the actual cause of the accident remains unknown. What steps taken by Broda Construction after the accident may have led to a safer worksite but there is no evidence that those steps relate to the cause of the accident. In that sense, deterrence becomes a lesser factor because it is not known what Broda Construction must be deterred from.

[56]        In many of the cases cited to me where significant fines were levied, the offender clearly and knowingly did something or chose not to do something, and that act or omission led to the accident. For instance, in the decision R. v. Canadian National Railway Company, 2017 BCPC 448, the court imposed the statutory maximum fine of $100,000 under the Canada Labour Code. In doing so, the court stated:

[48]  In my respectful opinion, and having reviewed the case law, those cases which attract a maximum fine are those in which the defendant has made informed decisions to act in a way or ways that are inimical to the legislative intention of the public welfare statute in question.

[57]        On the facts before me, there is no evidence to suggest that Broda Construction made an informed decision to act in a manner contrary to the legislative intention of the Mines Act, and specifically the Regulations aimed at ensuring a safe workplace and the protection of workers at mine sites. There was no clear connection between Broda Construction’s violation of the law and the deaths of Mr. Chorneyko and Mr. Fadden. That is the primary reason why I will not be imposing the maximum fine of $100,000.

[58]        I have also considered the collateral effects, that being the loss of revenues and the costs for remediation of the work site. These were significant costs and I have taken this into account, although only to a limited extent. The collateral effects certainly do not outweigh the overriding principles of deterrence and denunciation.

[59]        Having regard to the circumstances and factors that I have set out, the sentence will be as follows:

1.            Broda Construction Inc. will pay a fine of $20,000, to be paid within 30 days.  I am prepared to consider an alternative payment schedule if counsel wish to make submissions in that regard.

2.            Broda Construction Inc. will contribute the sum of $50,000 to the charitable organization called Threads of Life, to be paid in minimum installments of $10,000 commencing May 1, 2019 and continuing on the 1st day of each month thereafter up to and including September 1, 2019. I am prepared to consider an alternative payment schedule if counsel wish to make submissions.

3.            Broda Construction will provide to the clerk of the court and to counsel for the Crown with written proof of each monthly payment made to Threads of Life, within 7 days after each payment is made.

 

 

_____________________________

The Honourable Judge W. Lee

Provincial Court of British Columbia