R. v. Newfoundland and Labrador (Transportation and Works) et al., (2015) 363 Nfld. & P.E.I.R. 265 (NLPC)

• Judge: Linehan, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: February 27, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 363 Nfld. & P.E.I.R. 265 (NLPC);2015 NLPC 0113

R. v. Nfld. (2015), 363 Nfld. & P.E.I.R. 265 (NLPC);

    1129 A.P.R. 265

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MR.023

Her Majesty the Queen v. Department of Transportation and Works (NL) and City of St. John's

(2015 NLPC 0113A01838)

Indexed As: R. v. Newfoundland and Labrador (Transportation and Works) et al.

Newfoundland and Labrador Provincial Court

Linehan, P.C.J.

February 27, 2015.

Summary:

A number of employees were struck by a vehicle while they were conducting a roadway inspection. Two of the employees were injured and a third was killed. The employees worked for the City of St. John's; the Department of Transportation and Works (DTW); and Irving Oil or affiliated companies/contractors. The employers were charged with various contraventions of the Occupational Health and Safety Act or the Regulations. The Irving allegations were dealt with separately.

The Newfoundland and Labrador Provincial Court, in a decision reported at (2014), 358 Nfld. & P.E.I.R. 299; 1113 A.P.R. 299, found the City and DTW each guilty of seven offences. The Crown sought a global penalty for the DTW in the range of $150,000 to $200,000, and a global penalty for the City in the range of $110,000 to $140,000.

The Newfoundland and Labrador Provincial Court imposed financial penalties of $60,000 on each employer, comprised of fines totalling $23,000 and an order to pay $37,000 for a public education campaign.

Trade Regulation - Topic 7902

Industrial safety - Particular offences - Sentences - Considerations on imposing sentence - [See Trade Regulation - Topic 7908 ].

Trade Regulation - Topic 7905

Industrial safety - Particular offences - Sentences - Failure to ensure health and safety of workers - [See Trade Regulation - Topic 7908 ].

Trade Regulation - Topic 7908

Industrial safety - Particular offences - Sentences - Fines - A number of employees were struck by a vehicle while they were conducting a roadway inspection - Two of the employees were injured and a third was killed - The City of St. John's and the Department of Transportation and Works (DTW) were each charged with various breaches of the Occupational Health and Safety Act or the Regulations - Each was found guilty of seven offenses - The Crown sought a global penalty for DTW in the range of $150,000 to $200,000, and a global penalty for the City in the range of $110,000 to $140,000 - The Newfoundland and Labrador Provincial Court imposed penalties of $60,000 on each employer, comprised of fines totalling $23,000 and an order to pay $37,000 for a public education campaign - The Court considered: (1) the similar size of each employer; (2) the scope of the economic activity; (3) the extent of harm (how to best ensure the safety of employees through the imposition of the sentence); and (4) the maximum penalty prescribed by statute - The key aggravating factor was the death of one employee and the injuries to the others - In terms of mitigating factors, the conduct reflected errors in judgment and not intentional or flagrant disregard for employee safety; neither employer had a prior record of breaches; and each took significant steps to address safety issues related to roadside work very shortly after the accident.

Trade Regulation - Topic 7919

Industrial safety - Particular offences - Sentences - Failure to provide information, instruction, training or supervision - [See Trade Regulation - Topic 7908 ].

Cases Noticed:

R. v. Concord Paving (2012), 327 Nfld. & P.E.I.R. 324; 1015 A.P.R. 324 (N.L. Prov. Ct.), consd. [para. 11].

R. v. Miller Shipping Ltd. (2005), 245 Nfld. & P.E.I.R. 312; 730 A.P.R. 312 (N.L. Prov. Ct.), consd. [para. 13].

R. v. Nova Scotia (Minister of Transportation and Public Works) (2003), 277 N.S.R.(2d) 11; 882 A.P.R. 11; 2003 NSSC 274, consd. [para. 15].

R. v. New Glasgow (2008), 263 N.S.R.(2d) 390; 843 A.P.R. 390; 2008 NSPC 15, consd. [para. 17].

R. v. Scott Steel Ltd., 2006 BCPC 207, consd. [para. 18].

R. v. Murphy (D.) (2011), 304 Nfld. & P.E.I.R. 266; 944 A.P.R. 266; 2011 NLCA 16, refd to. [para. 23].

R. v. Oxford (M.) (2010), 299 Nfld. & P.E.I.R. 327; 926 A.P.R. 327; 2010 NLCA 45, refd to. [para. 24].

Statutes Noticed:

Occupational Health and Safety Act, R.S.N.L. 1990, c. O-3, sect. 67(1)(a), sect. 67(3), sect. 69(1)(b) [para. 19].

Counsel:

Michael King and Erin Breen, for Her Majesty the Queen;

Randolph Piercey, Q.C., for Newfoundland and Labrador (Transportation and Works);

Nicholas Avis, Q.C., for the City of St. John's.