R. v. Rose's Well Services Ltd. et al., (2009) 467 A.R. 43 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 07, 2009
• Citations: (2009), 467 A.R. 43 (QB);2009 ABQB 266

R. v. Rose's Well Services Ltd. (2009), 467 A.R. 43 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MY.056

Her Majesty The Queen (respondent) v. Rose's Well Services Ltd., L.V. Trucking Ltd., Keori Trucking Ltd., Thesen's Trucking Ltd. and 315378 Alberta Ltd., carrying on business under the firm name and style of "Dial Oilfield Services" (appellants)

(050294784S1; 2009 ABQB 266)

Indexed As: R. v. Rose's Well Services Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

May 8, 2009.

Summary:

Two employees were seriously injured in an explosion while unloading a highly flammable petroleum product from their service truck into a metal storage tank. The trial judge, in a judgment reported [2007] A.R. Uned. 81, found the employer guilty of failing to ensure the health and safety of its workers (Occupational Health and Safety Act, s. 2(1)(a)(I)) and breaching s. 185(2)(a) of the General Safety Regulation. Particularly, the trial judge found that the employer failed to establish clear safety rules, failed to train its workers and failed to supervise them. The trial judge sentenced the employer to a $5,000 fine, a $750 victim fine surcharge and payment of $95,000 to the Shock Trauma Air Rescue Society. The employer appealed against conviction and sentence.

The Alberta Court of Queen's Bench, in a judgment reported 467 A.R. 1, dismissed the conviction appeal. The sentence appeal proceeded to hearing.

The Alberta Court of Queen's Bench dismissed the sentence appeal.

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 - Two employees were seriously injured in an explosion while unloading a highly flammable petroleum product from their service truck into a metal storage tank - The employer was found guilty under the general duty provisions of s. 2(1)(a)(I) of the Occupational Health and Safety Act (failing to ensure the health and safety of its workers) and breaching s. 185(2)(a) of the General Safety Regulation - The employees breached the employer's safety and operating procedures and the General Safety Regulations by, inter alia, parking their truck too close to the storage tank (only three feet when industry standard was seven metres) and failed to properly ground the truck and bond it to the storage tank - The explosion resulted from either improper grounding or the revving truck engine igniting flammable fumes from the storage tank - The explosion would not have occurred had the truck been a safe distance away - The employer's argument that it exercised due diligence, that the senior employee was solely at fault for ignoring his safety training, was rejected - It was the employer's first offence - The offence did not result from a failure to devote significant time and money to the safety program, but from complacency in its implementation and enforcement - The maximum fine was $500,000 - The trial judge imposed a $100,000 fine, 95% of which was payable to the Shock Trauma Air Rescue Society, plus a $750 victim fine surcharge (based only on the $5,000) - The Alberta Court of Queen's Bench dismissed the employer's sentence appeal - The court rejected the submission that the trial judge overemphasized deterrence - A fine of 20% of the maximum was not demonstrably unfit or outside of the acceptable range.

Cases Noticed:

R. v. Terroco Industries Ltd. (2005), 367 A.R. 1; 346 W.A.C. 1; 2005 ABCA 141, refd to. [para. 12].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 12].

R. v. McDonnell (T.E.) (1997), 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321; 114 C.C.C.(3d) 436 (S.C.C.), refd to. [para. 14].

R. v. Canadian MDF Products Co. (2002), 316 A.R. 228; 2002 ABPC 82, refd to. [para. 15].

R. v. Fiesta Party Rentals (1984) Ltd., 2000 ABPC 218, refd to. [para. 15].

R. v. Fiesta Party Rentals (1984) Ltd., [2001] A.J. No. 1778 (Q.B.), refd to. [para. 15].

R. v. General Scrap Iron & Metals Ltd. (2001), 297 A.R. 358; 2001 ABPC 187, refd to. [para. 15].

R. v. General Scrap Iron & Metals Ltd. (2003), 322 A.R. 63; 2003 ABQB 22, refd to. [para. 15].

R. v. Carmacks Enterprises Ltd. (2007), 431 A.R. 91; 2007 ABPC 348, refd to. [para. 16].

R. v. General Scrap Iron & Metals Ltd. (2003), 327 A.R. 84; 296 W.A.C. 84; 2003 CarswellAlta 436; 2003 ABCA 107, refd to. [para. 16].

R. v. General Scrap Iron & Metals Ltd. (2002), 322 A.R. 32; 2002 CarswellAlta 869 (Q.B.), refd to. [para. 16].

R. v. Cotton Felts Ltd. (1982), 2 C.C.C.(3d) 287 (Ont. C.A.), refd to. [para. 23].

R. v. Solowan (K.S.T.) (2008), 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, refd to. [para. 34].

R. v. L.M. (2008), 374 N.R. 351; 2008 SCC 31, refd to. [para. 34].

R. v. L.F.W., [2000] 1 S.C.R. 132; 249 N.R. 345; 185 Nfld. & P.E.I.R. 1; 562 A.P.R. 1, refd to. [para. 61].

R. v. Kal Tire Ltd. et al., [2008] A.R. Uned. 585; 2008 ABQB 551, refd to. [para. 70].

Counsel:

Brian M. Caruk and Marshall Hopkins (Alberta Justice), for the Crown;

Sydney A. Sabine (Duncan & Craig LLP), for the appellants.

This appeal was heard on April 7, 2009, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 8, 2009.