R. v. Value Drug Mart Associates Ltd., (2014) 601 A.R. 180 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 03, 2014
• Citations: (2014), 601 A.R. 180 (PC);2014 ABPC 255

R. v. Value Drug Mart Assoc. Ltd. (2014), 601 A.R. 180 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. NO.110

Her Majesty the Queen v. Value Drug Mart Associates Ltd. (121494314P1; 2014 ABPC 255)

Indexed As: R. v. Value Drug Mart Associates Ltd.

Alberta Provincial Court

Allen, P.C.J.

November 12, 2014.

Summary:

Williams was injured while working as an order picker on a motorized conveyor belt system in the employer's warehouse distribution centre. The employer was charged under the Occupational Health and Safety Act with (1) failing to ensure, as far as reasonably practicable, the health and safety of a worker and (2) failing to provide safeguards if a worker may accidentally, or through the work process, come into contact with moving parts of machinery. The critical issue was whether the employer exercised the requisite due diligence.

The Alberta Provincial Court, in a judgment reported (2014), 594 A.R. 315, found the employer guilty on both counts. Applying the Kienapple principle, the second count was conditionally stayed. The Crown sought a $90,000 to $100,000 fine plus a 15% victim fine surcharge. The employer argued that a $70,000 to $75,000 fine was appropriate.

The Alberta Provincial Court imposed an $80,000 fine plus a 15% victim fine surcharge ($12,000).

Trade Regulation - Topic 7905

Industrial safety - Particular offences - Sentences - Failure to ensure health and safety of workers - An employee was working on a motorized conveyor belt in the employer's warehouse distribution centre - While bending down near the conveyor belt to plug in an electric scale to an extension cord, the employee's hair and hand got tangled in the belt's unguarded drive shaft, causing a disfiguring injury - All other conveyor belts in the centre had guards to protect employees against coming into contact with moving machinery parts - There were no warning signs and the employee was given little instruction respecting the danger that the drive shaft presented - The trial judge found the employer guilty under the Occupational Health and Safety Act with (1) failing to ensure, as far as reasonably practicable, the health and safety of a worker and (2) failing to provide safeguards if a worker may accidentally, or through the work process, come into contact with moving parts of machinery - Count 2 was conditionally stayed (Kienapple) - The employer failed to prove on a balance of probabilities that it exercised due diligence - The danger created by an unguarded drive shaft was foreseeable and the employer failed to take reasonable steps to ensure the employee's safety and to ensure that guards were in place - The employer, not the company charged with installing and maintaining the conveyor belts, was responsible for creating a safe working environment - It was not reasonable for the employer to "miss" the fact that for four years all of the conveyor belts, except the one that caused the injury, were protected by barrier guards - The Crown sought a $90,000 to $100,000 fine plus a 15% victim fine surcharge - The employer argued that a $70,000 to $75,000 fine was appropriate - The Alberta Provincial Court held that the primary sentencing consideration was deterrence - The level of the fine increased with the level of culpability, which in this case was at the lower end of the middle range - The employer was a first offender (maximum fine of $500,000) - It was not reckless with employee safety; it merely failed to take all reasonably practical steps to protect employee safety - The court imposed an $80,000 fine plus a 15% victim fine surcharge ($12,000).

Trade Regulation - Topic 7908

Industrial safety - Particular offences - Sentences - Fines - [See Trade Regulation - Topic 7905 ].

Cases Noticed:

R. v. Cotton Felts Ltd. (1982), 2 C.C.C.(3d) 287 (Ont. C.A.), refd to. [para. 8].

R. v. Independent Automatic Sprinkler (2009), 470 A.R.392; 2009 ABQB 264, refd to. [para. 8].

R. v. Fiesta Party Rentals (1984) Ltd., 2000 ABPC 218, refd to. [para. 9].

R. v. Terroco Industries Ltd. (2005), 367 A.R. 1; 346 W.A.C. 1; 196 C.C.C.(3d) 293; 2005 ABCA 141, refd to. [para. 14].

R. v. XI Technologies Inc. (2013), 574 A.R. 126; 2013 ABQB 651, refd to. [para. 16].

R. v. Kal Tire Ltd. et al., [2008] A.R. Uned. 585; 2008 ABQB 551, refd to. [para. 26].

R. v. Canadian MDF Products Co. (2002), 316 A.R. 228; 2002 ABPC 82, refd to. [para. 44].

R. v. Rose's Well Services Ltd. et al. (2009), 467 A.R. 43; 2009 ABQB 266, refd to. [para. 46].

R. v. Agra Foundations Ltd., [2011] A.R. Uned. 534; 2011 ABPC 224, refd to. [para. 48].

Counsel:

A. Magill, for the Crown;

K. Teskey, for the accused.

This matter was heard on June 9-11, July 29, and November 3, 2014, at Edmonton, Alberta, before Allen, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on November 12, 2014.