R. v. Westfair Foods Ltd., (2005) 263 Sask.R. 162 (PC)

• Judge: Whelan, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: April 27, 2005
• Jurisdiction: Saskatchewan
• Citations: (2005), 263 Sask.R. 162 (PC);2005 SKPC 26

R. v. Westfair Foods Ltd. (2005), 263 Sask.R. 162 (PC)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. MY.020

In the Matter of: The Occupational Health and Safety Act of Saskatchewan

Her Majesty the Queen v. Westfair Foods Ltd.

(Information No. 31550250; 2005 SKPC 26)

Indexed As: R. v. Westfair Foods Ltd.

Saskatchewan Provincial Court

Whelan, P.C.J.

April 27, 2005.

Summary:

An employee of Westfair Foods Ltd. suffered a severe spinal chord injury while assisting with the unloading of plants being delivered to one of Westfair's Superstores. Westfair pled guilty to a charge of failing to make arrangements for the transport and handling of plants and trolleys in a manner that protected the health and safety of workers, contrary to s. 12(b) of the Occupational Health and Safety Regulations.

The Saskatchewan Provincial Court imposed a $30,000 fine.

Trade Regulation - Topic 7902

Industrial safety - Particular offences - Sentences - Considerations on imposing sentence - The Saskatchewan Provincial Court discussed the principles and factors that guided sentencing for an offence under the Occupational Health and Safety Act and Regulations - See paragraphs 20 to 38.

Trade Regulation - Topic 7902

Industrial safety - Particular offences - Sentences - Considerations on imposing sentence - The Saskatchewan Provincial Court stated that "It has been said that regulatory offences focus on the consequences of the contravention and to that extent, the harm done or injury suffered is important in arriving at the appropriate fine. However I am not persuaded that retribution is necessarily a principle which would have general application to regulatory offences. It may be important to the category of offences for which moral blameworthiness is a consideration ... Nor am I persuaded that rehabilitation/reform is a principle which necessarily fits with the sentencing of regulatory offences. The tools available in criminal prosecutions, which facilitate rehabilitation, such as probation orders, are not available" - See paragraphs 36 to 37.

Trade Regulation - Topic 7902

Industrial safety - Particular offences - Sentences - Considerations on imposing sentence - An employee of Westfair Foods Ltd. was seriously injured while assisting with the unloading of plants delivered to one of Westfair's Superstores by Milner Greenhouses - A rack of plants and flowers fell off a power lift gate on Milner's truck onto the Westfair employee - Westfair pled guilty to a charge of failing to make arrangements for the transport and handling of plants and trolleys in a manner that protected the health and safety of workers, contrary to s. 12(b) of the Occupational Health and Safety Regulations - Westfair's counsel requested that, in arriving at the appropriate fine, the court apportion liability for the accident on the basis that 75% of the responsibility rested with Milner Greenhouses and 25% rested with Westfair - The Saskatchewan Provincial Court stated that it had insufficient information with which to apportion liability - In any event, it was not inclined to do so having regard to the objective of the legislation (to protect employees in the workplace), the view that deterrence was of paramount importance, and the circumstances of the offence - The negligence of Milner Greenhouses was one factor to be considered in arriving at the appropriate fine - See paragraphs 39 to 43.

Trade Regulation - Topic 7905

Industrial safety - Particular offences - Sentences - Failure to ensure health and safety of workers - An employee of Westfair Foods Ltd. suffered a serious spinal chord injury while assisting with the unloading of plants being delivered to one of Westfair's Superstores - A rack of plants and flowers fell off a power lift gate on Milner's truck onto the Westfair employee - Westfair pled guilty to a charge of failing to make arrangements for the transport and handling of plants and trolleys in a manner that protected the health and safety of workers, contrary to s. 12(b) of the Occupational Health and Safety Regulations - After the accident, Westfair provided financial assistance to the injured employee - It also implemented a policy for the safe delivery of plant products - The Saskatchewan Provincial Court held that a $30,000 fine was appropriate having regard to the importance, primarily, of general deterrence - The court considered the size, sophistication, and financial resources of Westfair, the failure to have any safety procedures in place notwithstanding the foreseeability of the danger, the seriousness of the injury, the range of fines in the jurisdiction, and the $300,000 maximum fine available.

Cases Noticed:

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161, consd. [para. 20].

R. v. Cotton Felts Ltd. (1982), 2 C.C.C.(3d) 287 (Ont. C.A.), consd. [para. 21].

R. v. Pederson (K.) (2000), 194 Sask.R. 102; 2000 SKQB 255, consd. [para. 25].

R. v. Sage Well Services Ltd. (2000), 194 Sask.R. 65; 2000 SKQB 259, consd. [para. 26].

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; 105 C.C.C.(3d) 327; 46 C.R.(4th) 269, refd to. [para. 27].

R. v. Meier (Lawrence) Trucking Ltd., [2000] S.J. No. 868 (Prov. Ct.), consd. [para. 28].

R. v. Advanced AG & Industrial Ltd. (2000), 193 Sask.R. 284 (Prov. Ct.), consd. [para. 29].

R. v. Howe (F.) & Son (Engineers) Ltd., [1999] 2 All E.R. 249 (C.A.), refd to. [para. 29].

R. v. Riklis Construction Ltd., [2003] O.J. No. 1726 (C.J.), refd to. [para. 30].

R. v. Bellai Brothers (Ont.) Ltd. (1993), 9 C.O.H.S.C. 167 (C.J. Prov. Div.), refd to. [para. 30].

R. v. Canron Inc., [1995] O.J. No. 4311 (C.J. Prov. Div.), refd to. [para. 30].

R. v. Manchester Plastics Ltd. (1989), 1 C.O.H.S.C. 3 (Ont. Dist. Ct.), refd to. [para. 30].

R. v. Virk, [2002] O.J. No. 4102 (C.J.), refd to. [para. 30].

R. v. Beach Motors Inc., [2002] O.J. No. 4458 (C.J.), refd to. [para. 30].

R. v. General Scrap Iron & Metals Ltd. (2003), 322 A.R. 63; 2003 ABQB 22, refd to. [para. 30].

R. v. Bata Industries Ltd. (1992), 70 C.C.C.(3d) 394 (Ont. C.J. Prov. Div.), refd to. [para. 31].

Authors and Works Noticed:

Annotated Occupational Health and Safety Act (2004), generally [para. 47].

Norman, Keith, Health and Safety Prosecutions in Canadian Health and Safety Law (2004), generally [para. 37]; c. 10, pp. 10-72, 10-74 to 10-75 [para. 24].

Counsel:

C. Sabit, for the Crown;

D. Labach, for the defendant.

This matter was heard before Whelan, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on April 27, 2005.