Occupational Health And Safety Sentencing Decision – Nova Scotia

Earlier this month, the Provincial Court of Nova Scotia issued its sentencing decision in R v The Brick Warehouse LP, 2024 NSPC 26, imposing a monetary penalty of $143,750 (i.e., based on fines totalling $125,000 and a victim surcharge of $18,750) coupled with an order for the employer to provide four educational presentations. The sentencing follows a September 2023 conviction on a number of charges under the Occupational Health and Safety Act (the "OHSA") and Regulations after a June 2020 fatality.

Key facts

On June 9, 2020, a delivery driver for The Brick was found injured on the floor of a washroom in the employer's store. The lights, which were on a timer, had turned off and no switch was located inside or nearby. Due to COVID-related changes in the store's hours, the timer for the washroom had been adjusted and, as a result, employees ended up using the washroom in the dark or using flashlights on their phones.

The victim was found semi-conscious and immediately taken to hospital, where they died two days after the accident. At trial, the Judge concluded that the victim sustained a fatal fall while he was in the washroom.

The employer did not inform the victim's family that he had been taken to hospital and the family did not, in fact, learn of the workplace accident until 30 hours later.

The workplace accident was reported to the Department of Labour by the victim's father, as opposed to the employer (as is required under the OHSA). Following an investigation, The Brick was charged under the OHSA.

Decision

At trial, Judge Buckle found the employer guilty of three offences under s. 74(1) of the OHSA, namely:

• Failing to ensure the employer's accident investigation policy was followed;
• Failing to ensure there was adequate lighting in the washroom, as required by the Regulations; and
• Failing to ensure the company's lighting policy was implemented.

Causation was a material issue in the sentencing decision – specifically, whether there was proof beyond a reasonable doubt that that the darkness in the washroom contributed to the victim's death in a non-trivial way, by either contributing to the fall or its consequences.

Judge Buckle concluded that, while the fatal injury was likely sustained inside the darkened washroom, the evidence did not establish that the darkness caused the victim's fall. While it was possible that he had slipped on an unseen hazard, it was equally possible that he had fainted, without warning. Had the latter occurred, the lack of light would have been factually irrelevant to the fall. Because factual causation was not established, Judge Buckle did not go on to assess legal causation. Had causation (i.e., factual and legal) been established, the potential fines could have been $500,000, as opposed to $250,000, per offence.

The $125,000 fine is broken down as follows:

• $55,000 for failing to provide adequate lighting in its washrooms, which was described as the most serious of the three offences as it created a significant risk of harm to employees and represented a "significant degree of negligence" in that there were no plans to prevent or detect the failure.
• $40,000 for failing to implement its accident investigation policy;
• $30,000 for failing to implement its lighting policies.

Because the charges relating to the failures to follow internal policies did not create an immediate risk to employee health and safety, these latter two were held to be, comparatively, less severe than the "main" offence of improperly lighting its washrooms and therefore justified a smaller fine.

Aggravating factors impacting the sentence included:

• The employer's breaches were motivated by saving money.
• At some point during each day, there was zero light in the washrooms.
• The risks associated with inadequate washroom lighting were very high (e.g., slipping, health, hygiene).
• The employer's accident investigation policies were not understood by relevant employees.
• The improper investigation may have resulted in lost evidence.
• The employer's delays in notifying the victim's family of the accident had devastating personal effects on the grieving family.
• Public cost to the investigation and trial.

Key takeaways for employers

This case is a reminder that serious accidents can happen in any workplace. Employers whose workplaces are not inherently dangerous and do not expose workers to traditional hazards nevertheless have a positive duty to guard against complacency with respect to health and safety obligations.

While workplace fatalities in Nova Scotia are, fortunately, reported to be on the decline in recent years, the fact remains that accidents on the job involve tragic human consequences. The resulting sentences for employers (and individuals) following a finding of culpability often involve (increasingly) significant fines as well as creative sentencing obligations.

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