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Alberta Worker Receives Record $10,000 Fine
This article was recently published in the McLennan Ross OHS news and was authored by David Myrol. Mr. Myrol is a leading authority in the field of Occupational Health & Safety law in Alberta, and was the first full time OHS Prosecutor for the Province of Alberta.
Dave Myrol is now in private practice with the firm McLennan Ross and is the Chair of their OHS Practice Group. He may be reached at 780 482 9290 or dmyrol@mross.com
On March 30, 2004, the Provincial Court imposed the highest fine ever given to a worker in Alberta. The defendant, Mr. Peter Hammett, was supervising a stucco crew in Ponoka, Alberta, when one of the crew members on a scissor lift contacted an overhead power line and was fatally electrocuted. Hammett pled guilty to s. 2(2) of the OHS Act for failing to take reasonable care to protect another worker. He was fined $10,000 plus a $1,500 victim fine surcharge. After the defendant worker was sentenced, the prosecution withdrew the charges against the corporate defendant, Alpine Drywall Plastering & Interiors Ltd. The prosecution did not explain why the charges were dropped against the corporation that employed the deceased worker.
Alpine had contracted to remove and install new stucco and siding on a 2 ½ storey apartment building located in Ponoka, Alberta. Near the north wall of the building were two overhead power lines: the lower line was a neutral line and 2.5 metres above that was a three phase, 25,000 volt power line. On the day of the accident three other workers had warned about the dangerous presence of the power lines. One of those workers even refused to perform the work and removed himself from the scissor lift. However, despite these warnings and the presence of the power lines, the defendant worker and two other workers continued to use the scissor lift. In the process of positioning the scissor lift, the work platform of the scissor lift was initially caught by the neutral power line.
The defendant worker instructed one of the workers to move the neutral power line. This was done without incident. Later in the day the scissor lift was repositioned and the work platform was again caught by the neutral line. This time when one of the workers moved the neutral line he contacted one of the energized lines above, completing the circuit and fatally injuring the worker.
In this case the prosecution argued that the higher fine was justified because of the “level
of negligence” involved, noting that the defendant worker knew of the hazard, was “reckless to the consequences,” and failed to follow instructions and warnings about electrical hazards "posted on the scissor lift." There was no mention in this case of the level of training or supervision the defendant worker had received. The prosecution provided examples of similar decisions in support of its position, arguing that the case law supported the higher fine. In so doing, the prosecution argued there was little difference between an owner/director and a foreman, and that both should be treated comparably.
Defence counsel agreed that a $10,000 fine was appropriate in the circumstances, but
suggested that the real fault of the defendant worker was in failing to recognize the seriousness of the hazard. Defence counsel noted that the defendant worker had willingly exposed himself to the same hazard and was voluntarily working alongside the deceased worker at the time of the accident.
The level of authority of the defendant worker was also questionable, given he had no power to hire or fire anyone (he was actually an employee of a B.C. company that had subcontracted with Alpine). In the end the court agreed with the joint submission of counsel and imposed the recommended fine. As such, the defendant worker in this case was fined more than twice the amount of any fine ever imposed on a “worker” in Alberta. This case is significant because it sends a clear message that managers (even ones with limited authority) will be punished more like “employers” than “workers” – even though their statutory responsibilities are fundamentally different.
Whether the facts of this case justify such a dramatic increase in the level of fines for workers is questionable. In the supporting cases cited by the prosecution: most involved charges against individuals as "employers" and not as "workers”; and of those cases cited, the highest fine imposed on a “worker” was $4,000. Moreover, the increase could not be justified under the newly legislated maximum fines because the accident happened one month before the amendments took effect. Accordingly, there seemed little justification in this case for the increase other than the larger trend of courts using higher fines as a method of deterring unsafe work practices. It is a message that the courts have been sending for the last few years and with this case it has now been extended to managers and foremen.
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