Jail for OHS Offences? Yes - Even if the OHS Prosecutor Didn’t Ask For it!
It has long been the law in Alberta that work site parties convicted of offences under the Occupational Health and Safety Act, Regulations or Code could spend time in jail. Until recently, however, this had never happened. Alberta courts have relied instead on fines and/or creative sentencing.
In R. v Haya Homes Ltd., Sahib Contracting Inc. and Sukwinder Singh Nagra, Judge Michelle Doyle of the Alberta Provincial Court imposed a period of incarceration on a family business owner for creating a dangerous work environment that resulted in the death of a day labourer.
Mr. Nagra, the owner and operator of Sahib Contracting, was charged under the Criminal Code for criminal negligence causing death (also a rarity in Alberta), but plead guilty to a charge under s. 2 of the OHS Act for “failing to take reasonable care to protect the health and safety” of the deceased worker, Frederick Tomyn. At the summary disposition, the guilty plea and an agreed statement of facts as well as contested sentencing submissions were before the Court. The Prosecutor and Mr. Nagra’s counsel sought fines of varying amounts. Neither suggested jail.
Judge Doyle saw things differently. She made an example of Mr. Nagra, sentencing him to four months in jail and a fine of over $30,000. Although his company pled guilty to a similar offence, Judge Doyle imposed a fine just below the $500,000 maximum for a first conviction.
According to the agreed facts, Sahib Contracting was contracted by Haya Homes (a homebuilding company) in 2015 to connect water and sewer lines, which required the excavation of a trench. Mr. Nagra was a director and the sole employee of Sahib Contracting at the time. He hired Mr. Tomyn as a casual labourer. Mr. Tomyn had no formal education, qualified for supports under Alberta’s disability subsidy program (AISH) and worked solely at the discretion of Mr. Nagra.
Neither Mr. Nagra nor Mr. Tomyn had any formal training on industry practice for trench excavation at the time of the accident. Mr. Tomyn followed Mr. Nagra’s directions and entered the unsupported and unbraced trench. When it collapsed, Mr. Tomyn was buried alive.
In sentencing, Judge Doyle did not consider prior judgments in Ontario and Quebec where jail terms were imposed for criminal negligence under the Criminal Code. She relied instead on cases considering the purposes of OHS legislation and emphasized the facts before her in light of the deterrence principle. In doing so, she found that Mr. Nagra and his company “made no effort whatsoever to comply with legislation. This activity was inherently and obviously treacherous. The harm caused was extreme.”
Judge Doyle acknowledged that Sahib Contracting could never pay the fine she imposed. Rather, she intended its magnitude to communicate to companies conducting business in purposeful ignorance of safety legislation that they should expect to receive a “punishing [fine] that would cause many small businesses to go bankrupt.” Similarly, in sentencing Mr. Nagra, Judge Doyle cautioned that “individuals who manage work sites, especially work sites that employ workers that are vulnerable to exploitation… can expect to pay for their conduct with their freedom.”
While the facts of this case are extreme, the sentences imposed and reasoning behind them stand as a cautionary tale for Alberta businesses, directors and supervisors. Particular caution should be taken considering the hefty onus on “ensuring” safety set out in the incoming OHS Act, which comes into force June 1, 2018.
Field Law can assist you and your organization to ensure compliance with Alberta’s existing and incoming OHS legislation and to defend OHS charges under Alberta laws and the Criminal Code.