R v. Lafarge Canada Inc.

Court File No.: Woodstock: Information No. 18-1228

Date: 2019-09-20

Ontario Court of Justice

Parties

Between:

R (Crown)

— And —

Lafarge Canada Inc. (Defendant)

Before the Court

Justice of the Peace: M A Cuthbertson

Heard on: 11 January and 14 June 2019

Reasons for Judgment released: 20 September 2019

Counsel

For the Prosecution: E. Schiller and J. Dhar

For the Defendant: P. Brady

JUSTICE OF THE PEACE CUTHBERTSON:

1. FACTS

[1] On 23 August 2017, an Operational Procurement Manager (name withheld at the request of the family) sustained fatal injuries as a result of a fall from heights at a decommissioned cement plant (old kiln) owned by the defendant corporation in Zorra Township, Oxford County. The old kiln is contained within the footprint of a larger fully operating facility. The deceased manager did not work full time at the Woodstock facility but had visited for work assignments from time to time. He apparently was aware that the old kiln was an "out of bounds" area.

[2] The Agreed Statement of Facts, filed as Exhibit 1, (see Appendix A) sets out the circumstances of this tragic incident. This Exhibit also sets out the prior record for similar offences of the corporation which details that between 25 August of 2003 and up to and including the date of this matter, there have been a total of four deaths and a critical injury at workplaces in Ontario owned by Lafarge.

[3] On 11 January 2019, Lafarge pled guilty before me and was convicted of the offence of failing as an employer to ensure that the measures and procedures prescribed in Section 72 of the Revised Regulations of Ontario, 1990, Regulation 851, as amended, contrary to Section 25 (1)(c) of the Occupational Health and Safety Act.

2. THE JOINT SUBMISSION

[4] This matter originally came before me by way of a judicial pre-trial (JPT) in September 2018. An agent for Mr Brady and another Crown counsel for Mr Dhar appeared and advised that they anticipated a resolution and a joint submission as to penalty. Counsel did not advise me of the prior record of Lafarge. Subsequently, the 11 January 2019 resolution date was set. Both sides agreed that I would hear the plea.

[5] After I accepted the plea, counsel for the parties jointly submitted that a fine of $400,000 plus appropriate costs and surcharges was appropriate in the circumstances. Following the conviction but before the court imposed sentence, Crown counsel withdrew the other charges on the Information.

[6] Upon hearing the Agreed Statement of Facts and the Prior Record on the resolution date, I expressed strong concern about the joint submission and advised counsel that I needed more information pursuant to R v Anthony-Cook, 2016 SCC 43, prior to providing a ruling. Additional judicial pre-trials on the issues were held in March and May. Then on 14 June 2019, counsel provided on the record submissions and further exhibits in support of their joint submission. I advised that I would provide a written decision in the matter.

[7] This has been a particularly troubling matter for me. I have been doing judicial pre-trials in the West region for approximately 8 years in multiple jurisdictions. The rules governing matters for which a judicial pre-trial must be held in this region dictate that all matters resulting in a death must go before a JPT justice. As a result and I am saddened to say, I have dealt with far too many death related cases. Nonetheless, throughout the years, I have never rejected a joint submission from counsel.

[8] However, this matter caused me to come very close to rejecting a joint submission for the first time. Ultimately, I have decided to accept the joint submission but with considerable reticence.

[9] My reasons both in favour of accepting the joint submission and why I am of the view that the current practices for joint submissions in Occupational Health and Safety Act (OHSA) matters for large corporations with multiple convictions for deaths require a new approach are detailed below.

3. REASONS FOR ACCEPTING THE JOINT SUBMISSION

[10] Counsel noted that beginning at para 32, Anthony-Cook sets out a high threshold for the rejection of a joint submission. In its summary in para 34, the Supreme Court of Canada held that:

Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.

[11] Crown counsel submitted that the joint submission reflected several factors that it was obligated to take into consideration. Mr Dhar noted that Lafarge indicated early in the process that it wished to resolve the matter by way of a plea. As well, the Crown acknowledged that there were triable issues which the defence could have chosen to pursue had a trial occurred. Mr Dhar further noted that a trial would have been lengthy and the resolution saved considerable court resources.

[12] Of considerable importance in my consideration of the joint submission was the family's desire, as stated by the Crown, to bring this matter to a conclusion so they can move on with their lives. Equally compelling was the potential impact on the family of difficult and unpleasant evidence which may have been revealed during a trial or sentencing hearing. Had I rejected the joint submission, a trial may have followed. Therefore, Lafarge's plea removed significant additional burdens from a family already traumatized by the loss of a loved one.

[13] I have carefully read the Victim Impact Statements submitted by the family members. They touched my heart. The pain for the deceased manager's loved ones is palpable. Their lives have been inextricably altered by their loss. The family members have my deepest condolences.

[14] I also want the family to know that my decision on the fine should not in any way be considered the value of their lost loved one's life. The value of their loved one cannot be measured in dollars but rather in the love, joy and devotion that life with that person brought to your family and friends. Unfortunately, much of what I write below will deal with money and the hard reality of sentencing an offender corporation. It is a necessity under the Occupational Health and Safety Act.

[15] Mr Brady joined in supporting Mr Dhar's reasons as to why the joint submission should be accepted. In further support of the joint submission, counsel for Lafarge provided a number of decisions where fines were imposed on other large corporations with a range from $175,000 to $425,000 for similar offences (see Exhibit 3 – Written Submissions of Lafarge Canada Inc). It is these prior convictions and fines for other corporations which Mr Brady submitted provide support for my acceptance of the joint submission for a fine of $400,000, in the matter at bar. Effectively, Mr Brady opined that the fine ranges provide the legal basis for the proposition that the joint submission before me was not 'unhinged' as required by Anthony-Cook to reject a joint submission. Mr Dhar agreed with this position.

[16] Based on the cited case law and fine range therein, I agree with both counsel that the proposed joint submission does not rise to the level of the test set out in para 32 of Anthony-Cook above such that it should be rejected. It is for that reason as well as to allow the family to move on that I will accept the joint submission.

[17] There is an additional reason, albeit a decidedly lesser one, why I am accepting the joint submission. Anthony-Cook (see paras 58 and 59) provides that if I was to reject it, then I must consider allowing the defendant to withdraw its guilty plea and the matter would go before another judicial officer. Under normal circumstances, if I struck the plea, the Crown could then pursue all of the three charges that Lafarge originally faced. If a trial was necessary the corporation would have needed to defend itself on all the charges. However, Mr Schiller, as Crown counsel, withdrew the other two charges on 11 January 2019, despite my stated concerns over the joint submission and his original statement that "following sentencing, the Crown will withdraw the remaining counts" (see 11 January 2019 Transcript, p. 2). The Crown having relied on acceptance of the joint submission on one charge only was now in a significantly different and potentially disadvantaged position had a trial been necessary. Mr Dhar expressed his concern over this scenario during our post January judicial pre-trial discussions. I agreed that the withdrawal of the other charges, while within the discretion of the Crown of the day, was not in keeping in my experience, with the general practices of the Ministry of Labour when sentence had not yet been passed.

[18] Finally, it is my hope that the discussion below will lead to changes in the way these types of matters are presented by way of joint submissions. In my view, the current methods are not meeting the goals of the OHSA.

4. REASONS FOR MY CONCERN ABOUT THE CURRENT PRACTICES SURROUNDING JOINT SUBMISSIONS IN OHSA MATTERS FOR LARGE CORPORATIONS WITH MULTIPLE CONVICTIONS FOR DEATHS

4.1 The Purpose of the Occupational Health and Safety Act

[19] I start with the fundamental question of what the OHSA has been put in place by the legislature to achieve. The seminal case on this issue is R v Cotton Felts Ltd, from the Ontario Court of Appeal. Blair J.A., writing for the court, in para 7 noted with approval the following comments of Judge Dnieper:

And if I seem awfully sensitive in relation to this Act and offences under this Act, it will have to be understood that it is difficult for me to see a constant stream of my fellow citizens coming through these courts with missing fingers, missing arms and missing husband(s).

[20] Judge Dnieper was also quoted as to what is necessary to achieve deterrence and provide protection to the public. The Court of Appeal in para 10 adopted His Honour's remarks as follows:

In my view only fines that hurt would have any effect whatsoever. On subsequent offences I would have no hesitation whatsoever in fining the maximum of twenty-five thousand dollars on every count. Somebody has to protect the next man who might lose his arm. (Emphasis added)

[21] Once again, Blair J.A., turned to Judge Dnieper's earlier decision when the Court stated in para 22:

The main factors in the computation of a fine expressed in these decisions are the same as those expressed by Judge Dnieper. Without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere licence fee for illegal activity. (Emphasis added)

[22] Finally, in para 19, the Court of Appeal provided Ontario's courts with the following guidance on the purpose of the OHSA and how to apply it:

The Occupational Health and Safety Act is part of a large family of statutes creating what are known as public welfare offences. The Act has a proud place in this group of statutes because its progenitors, the Factory Acts, were among the first modern public welfare statutes designed to establish standards of health and safety in the work place. Examples of this type of statute are legion and cover all facets of life ranging from safety and consumer protection to ecological conservation. In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all. To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute. Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence: see R. v. Ford Motor Company of Canada Limited (1979), 49 C.C.C. (2d) 1, per MacKinnon A.C.J.O at p. 26; Nadin-Davis, Sentencing in Canada, p. 368 and cases therein cited. (Emphasis added)

[23] In the cited 1979 Ford Motor Company decision, the Court of Appeal found there were no injuries suffered in the incidents. Nonetheless, the Court assessed a fine of 50% of the then maximum fine.

[24] In R. v. Ellis-Don Ltd, Galligan J.A., writing for the majority of the Ontario Court of Appeal identified in para 24 (in part) the objective of the OHSA, as follows:

The objective of the Act, as its name implies, is to protect the health and safety of the workers in the workplace. Not only is that objective one of vital importance, it is a laudatory one. The need for strong legislation to protect workers in the workplace is demonstrated by the tragic circumstances of the three accidents which gave rise to the cases in appeal. Two of those accidents resulted in fatalities. In the other a worker's hand was mutilated by a saw. The hazards to which some workers are subjected are so great that I have no hesitation in concluding that strong legislation to protect them is essential…

[25] Carthy J.A. (dissenting) discussed the need for government regulation and to enforce compliance but also the need for a collaborative approach by labour and management to meet the provisions of the OHSA. In para 66, Justice Carthy noted:

In the procedural guide issued contemporaneously with the statute the following is stated (Guide to the Occupational Health and Safety Act (Toronto: Ontario Ministry of Labour, 1978), p. 28):

The Act is based upon the principle that hazards can best be dealt with in the workplace itself through communication and cooperation between employers and workers.

Fundamental to the Act is the concept that employers and workers must share responsibility for occupational health and safety and that both must actively seek to identify hazards and develop responses to protect workers. This internal responsibility system assumes assessment of the system itself by employers and workers through the appointment of health and safety committees and representatives and through regular inspections of the workplace.

[26] In para 67, Justice Carthy then stated:

This concept is clearly reflected in the Act which goes far beyond establishing rules and expecting them to be observed under the threat of prosecution. Committees are to be formed, composed in part of workers, whose duty it is to identify and report on conditions that might be hazardous to workers. Internal systems are established to resolve issues related to safety. External inspectors are appointed to mediate disputes, oversee the workplace, and with ultimate powers to issue compliance orders and seize equipment and documents. Finally, prosecution of an employer may be pursued with liability to a fine of $25,000 maximum or imprisonment for up to 12 months. The fine was increased to $500,000 in June 1990 by Bill 208 (Occupational Health and Safety Statute Law Amendment Act, S.O. 1990, c. 7).

[27] Also in para 93 (in part), Carthy J.A., noted the importance of the maximum fine and the use of fines as a deterrent by stating:

The recent increase in the maximum fine [s. 37(1a) of the Act, enacted by the Occupational Health and Safety Statute Law Amendment Act, S.O. 1990, c. 7, s. 35], without an increase in the term of imprisonment, makes it even more evident that the deterrent influence is intended to be in the pocketbook. (Emphasis added)

[28] Therefore, the OHSA was designed to protect workers from harm in the workplace. Employers have an obligation to ensure their workplaces are safe so every worker can go home at the end of their shift having suffered no physical harm while performing their job.

[29] Cotton Felts sets out the regime for determining penalties for convictions under the OHSA. The Court of Appeal makes it clear that deterrence, both general and specific, are essential to the proper functioning of this Act. It also makes it clear (see the emphasized portion of para 10) that the imposition of the maximum penalty is a viable tool where more than one offence has been committed by an offender company.

[30] In applying the Cotton Felts (see para 19 of that decision, in para 22 above) criteria, I note that Lafarge Canada Inc is a very large corporation with operations across Canada. It is also part of an international enterprise (Lafarge-Holcim) which is one of the largest cement companies in the world. Lafarge Canada has annual sales in excess of $200 million in eastern Canada alone (see Transcript, 11 January 2019, p.13). It employs approximately 6,000 people across Canada (see Transcript, 11 January 2019, p.7). The harm to the public is obvious as a tragic death occurred in this matter. The maximum penalty was, at the time, $500,000.

4.2 The Proposed Fine as Sufficient Deterrence

[31] I asked counsel on 11 January 2019 when I heard the Agreed Statement of Facts and Lafarge's record of convictions for three prior deaths and one critical injury since 2003 whether the proposed fine would be sufficient deterrence to prevent additional deaths at Lafarge's workplaces. I noted that in my almost 17 years on the bench, I had never had a company before me with a record of workplace deaths like that of Lafarge.

[32] I further pointed out to counsel that the accumulated fines for the prior convictions amounted to some $765,000 and yet this significant sum of fines had not prevented yet another death, in a Lafarge workplace.

[33] My concern was that a fine of $400,000 for a corporation with hundreds of millions of dollars in revenue in Canada per year would not be sufficient deterrence. My concern was that it may appear as a 'mere licence fee for illegal activity' as expressed in para 22 of Cotton Felts (see the added emphasis portion in para 21 above).

[34] It was the position of both counsel that the fine was sufficient deterrence. I indicated that I required additional information on the issue, as required by Anthony-Cook.

4.3 The Failure to Observe the Obvious

[35] Counsel for Lafarge submitted that Lafarge takes safety at its facilities seriously. However, Mr Brady also acknowledged that the decommissioned plant was a danger. Employees had been told by Lafarge management that it was out of bounds and not to enter that area.

[36] Despite that a walkway through the old kiln area was used by Lafarge employees to access No. 4 Mill from the maintenance administrative building.

[37] Surprisingly, previously locked access doors and access to areas which had been chained and locked were left unlocked into areas of the old kiln plant. Surprisingly, there was no secure fencing constructed prior to the incident to keep people away from the danger.

[38] I was not advised of any maintenance having been done since that plant was decommissioned in 2008. It could not have been a surprise to anyone that the ravages of Canadian weather would have been unkind to the old kiln plant. This was ultimately illustrated when the by then corroded section of an exterior catwalk in the upper levels of the old kiln buildings gave way under the deceased worker when he was 30 feet in the air leading to his tragic demise.

[39] Mr Brady submitted that each of the prior deaths and the critical injury was a unique set of circumstances at other Lafarge facilities. After each incident, Lafarge took steps to put policies and practices in place to ensure such incidents did not occur again. Mr Brady opined that no similar incidents occurred afterwards thereby demonstrating the effectiveness of Lafarge's efforts. However, he noted that the first death which occurred in 2001 in Kitchener (see Transcript, 14 June 2019 p. 25) involved an employee working at heights on the side of a silo. By way of additional comment, I am unclear about this 2001 death as it was not included in the Prior Record submitted by Lafarge as part of Exhibit 1.

[40] In my view, the earlier Kitchener and 2017 Woodstock deaths were both deaths involving working at heights. With respect to Mr Brady, I do not agree that the steps taken after the Kitchener incident led to the elimination of such incidents.

[41] Mr Brady also advised that Lafarge had conducted safety audits at the Woodstock facility in both 2016 and under a new global standard from its parent organization in 2017. Surprisingly, the decommissioned plant was not part of either audit because it was not part of an active workplace (see Transcript, 14 June 2019, p.41).

[42] It is obvious that the management of Lafarge knew that the decommissioned area was dangerous but failed to take adequate measures to protect the workers. Presumably, as noted in para 67 of Ellis-Don there were joint committees of management and employees tasked with health and safety issues in 2017. I have heard nothing to suggest that any such committee observed and took action to address the obvious safety concerns involving the old kiln plant.

[43] Therefore, every group within Lafarge from its parent company on down the corporate chain, each of which had an obligation to ensure a safe workplace under the OHSA could observe the obviously dangerous, decaying and accessible old kiln, yet apparently none acted to eliminate the hazard.

[44] Again, I respectfully disagree with Mr Brady, as my view is that Lafarge did not sufficiently take safety seriously enough as it failed to observe the obvious and to take steps to avoid a preventable tragedy.

[45] Presumably, Ministry of Labour (MoL) inspectors visited Lafarge's Woodstock operations between the decommissioning of the plant in 2008 and the incident of 2017. As counsel did not provide any information on the issue, I am not aware of any steps taken or not taken by MoL inspectors to ensure that the decaying old kiln plant was not a danger.

4.4 Analysis of Joint Submissions on Pleas by Large Corporations Where a Death Occurred

[46] As both counsel relied on a range of fines imposed in earlier cases against large corporations in matters where a death occurred to justify the joint submission, I decided to analyze those fines. While some of the information on the cases provided by Lafarge was from summary sheets provided in Exhibit 3 which made it difficult to properly ascertain the history of some corporations, I was able to construct Table 1 (see Appendix B). I left out the cases (Vale Canada X 2 and Placer Dome) for which I did not have sufficient data to add to Table 1.

[47] The data in Table 1 tells an interesting story. No corporation – no matter how many OHSA convictions for deaths that have occurred in their workplace – has ever been fined the maximum penalty on a plea in Ontario. Crown counsel Mr Dhar acknowledged this fact (see Transcript of 14 June 19, p 21).

[48] It is also my understanding that no corporation has been sentenced to the maximum penalty upon conviction after a trial under the OHSA.

[49] It also appears, as exemplified by the current Lafarge matter, that corporations have learned that, despite Judge Dnieper's comments in Cotton Felts suggesting that he would not hesitate to impose a maximum fine on a corporation that is a repeat offender, by pleading guilty in death related cases, their counsel can rely on the range of fines set out in the cases provided in Exhibit 3 as precedents, especially when the Crown agrees to a joint submission within the range. Clearly, the range of fines allows the defendant corporation to never face a maximum fine. In those scenarios, just as in the matter at bar, then Anthony-Cook provides a powerful and compelling basis for such joint submissions to be accepted.

[50] Some 37 years after Judge Dnieper's comment in Cotton Felts a maximum fine has not been imposed, no matter how many deaths have occurred in a corporation's workplace. In my view, this has not achieved the deterrence objectives of the OHSA.

[51] However, in other provinces the maximum fines (albeit smaller maximum fines than in Ontario) have already been assessed on corporations for deaths under comparable acts to the OHSA of Ontario. In R. v. Hudson Bay Mining & Smelting Co. Ltd., [2001] M.J. No. 595, the Court having applied Ontario's Cotton Felts' factors levied the maximum fine of $150,000, after accepting a guilty plea. The company had no prior record of safety violations. In R. v. Canadian National Railway Company, 2017 BCPC 448, the company was convicted, after trial, under the Canada Labour Code in an accident involving the death of a worker. The company had five prior convictions involving deaths and three involving injuries. The Court applied the Cotton Felts considerations and levied the maximum fine of $100,000.

4.5 Analysis of Range of Highest Fines

[52] I note that sentencing is a complex issue in which the presiding judicial officer must weigh multiple factors. Those factors include:

(a) An offender's record. This is an important consideration given the importance of specific deterrence.

(b) The circumstances of the offence.

(c) A guilty plea as a mitigating factor. However, other aggravating factors may justify a maximum fine.

(d) The concept of progressive punishment which means that the number of convictions, as well as the number of deaths, is relevant – ie: was the corporation convicted (and punished) 5 separate times for one death or was there a single incident resulting in five deaths? In the first situation, specific deterrence may be more important since the company has failed to learn despite multiple interventions.

[53] However, when accepting a joint submission from counsel, I think that it would be fair to say that the judicial officer assumes that both sides have carefully considered all of the factors not the least of which are ranges of fines on a per death basis, in other matters. Based on the data from the Table 1, it appears that this is decidedly not the case.

[54] The data in Table 2 (See Appendix B) is disconcerting to say the least. It shows that the fine ranges for corporations where multiple deaths have occurred do not increase in any rational fashion from the first death. A reasonable member of the public would rightly ask how large corporations with their 3rd, 4th and 10th conviction for a death could actually pay less than corporations on their 1st or 2nd conviction for a death. And yet that is what appears to be occurring according to Table 2.

[55] While the maximum fine in 2017 under the OHSA was $500,000, the legislature has since seen fit to raise it to $1,500,000, presumably to enhance deterrence.

[56] A more logical progression of fines would be for each death after the first to be multiplied by the number of total deaths. For clarity then, 2 deaths would double the range, 3 deaths would triple the range and so on. In Table 3 (see Appendix B) I have organized, based on the new maximum fine, just such a progression of Ranges of Highest Fine based on Single Death Range but Multiplied by Total Deaths. As shown, the new maximum fine will be reached at the upper end of the range at 5 deaths.

[57] The progression of fines as deaths increase in Table 3 provides significant deterrence as per Cotton Felts and Ellis-Don. They also provide a strong incentive for a responsible corporation to take the steps necessary to prevent workplace accidents which lead to a death. It also provides counsel and the judiciary with understandable and meaningful ranges for fines. This range of fines, if adopted by a sentencing justice, may adequately address the complex factors required for sentencing.

[58] I note that the data as organized in Tables 1 and 2 has never been presented to me when I have dealt with OHSA matters where there has been a death and certainly not in the Lafarge matter. Had the analyses been provided, I would have found them to be helpful to assess the merits of a joint submission. I stress that nothing compels any judicial officer to accept the fine ranges suggested in Table 3. For example, a sentencing justice could choose to impose a maximum fine far sooner than at the 5th death which this Table indicates or conclude a fine lower than the range is appropriate.

[59] A fair question then is what happens when a large corporation with vast financial resources continues to have deaths in the workplace despite the new maximum fine of $1,500,000? What, if any additional tools, are available to increase deterrence, where necessary? I will address this issue below.

4.6 The Application of the Flex-N-Gate Decision

[60] Counsel for Lafarge noted that post each prior incident (death or critical injury) Lafarge took steps to conduct in-house reviews of its procedures and to implement steps to avoid a repetition of those tragedies.

[61] Mr Brady also relied on the Ontario Court of Appeal decision in Ontario (Ministry of Labour) v. Flex-N-Gate Canada Co., 2014 ONCA 53, to support his contention that Lafarge deserves recognition for the steps it took to prevent future deaths or injuries after the 2017 death. I note the following Court of Appeal's statements in Flex-N-Gate on this issue:

23 Deterrence is undermined by treating statutorily required compliance as a mitigating factor on sentence. Rewarding an employer for action that it should have taken before an accident happened creates an incentive to put off compliance.

30 If, after having contravened a safety standard, an employer then acts to correct the problem, it is not "doing the right thing"; it is doing what the statute requires it to do. It ought not to be "rewarded" for its compliance.

31 Accordingly, I would allow the Crown's appeal on this first issue and hold that an employer's corrective action taken in response to an inspector's order is not a mitigating factor on sentence.

32 I would, however, add two points. First, if an employer takes corrective action that goes beyond what was required by an inspector's order, then a court may take that additional action into account in sentencing the employer. "Rewarding" remedial steps not required by an inspector's order would be consistent with the goal of accident prevention.

33 Second -- and perhaps this is an obvious point -- in sentencing an employer for breach of the OHSA, action taken to promote health and safety before an accident occurs should be treated differently from corrective action taken only in response to an inspector's order. Action taken beforehand is an appropriate mitigating factor on sentence. Treating it as one is consistent with the goal of accident prevention and with the principle of deterrence.

34 In this case, in November 2003, just months before the accident, Flex-N-Gate retained a health and safety consultant to do an independent audit of the company's health and safety program and compliance with OHSA standards. The consultant reviewed Flex-N-Gate's procedures, inspected its factory and then prepared a report, which listed safety concerns and recommended changes to some of the company's procedures. Flex-N-Gate implemented the recommendations. In sentencing Flex-N-Gate, the Justice of the Peace acknowledged, appropriately in my view, the steps taken by Flex-N-Gate "to establish a safe working environment".

[62] A MoL inspector issued Order #04151LPTW466 to Lafarge (see Exhibit 7) on 23 Aug 2017, after the incident. It contained the follow directions:

a) The Employer shall ensure the floors and access catwalks in and around the old Kiln Plant buildings are kept free of hazards. At the time of the investigation, the catwalks around the Old Kiln Plant contained hazards and were in poor condition.

b) The Employer shall ensure the Old Kiln Plant and associated buildings at the Lafarge Woodstock Plant be cleared of workers and isolated by barricades, fencing or any other means suitable to prevent access thereto by a worker until the danger to the health or safety of a worker is removed.

[63] Mr Brady advised that following the Order, steel fencing was erected around the old kiln area to prevent access. Signage was affixed indicating unauthorized access was prohibited. Exterior doors were secured and appropriate signage attached. Employees could no longer walk through the area on their way to other destinations within the larger facility. These steps were taken to directly comply with the Order.

[64] Further steps were taken which Lafarge submits deserve to be considered as mitigating factors pursuant to Flex-N-Gate. I was advised both counsel did consider these as mitigating factors as part of their joint submission. The additional steps (see Transcript 14 June 2019, p 28 to 33) some of which applied to all Canadian Lafarge sites, and some of which applied only to the Woodstock facility were:

1. Risk Assessment Prior to Entry – An assessment was required to be completed before entry to the old kiln area. An attendant was required to remain at the point of entry into the old kiln area when a visit was necessary and to ensure the fence was thereafter secure. Applicable to the Woodstock facility only.

2. Visitor Management Policy – It provided health and safety orientation upon arrival for visitors. It also requires a Site Induction which includes a review of areas under construction/repair and areas where access is prohibited. It also includes site-specific hazards and areas. (see Exhibit 4, Section 6.3.3, para 1)

3. Workplace Inspections – The OHSA requires that workplaces are required to have a monthly inspection of the workplace. Prior to the incident the old kiln area was not included in the inspections as it was not an active workplace. After the incident, the old kiln area and associated structures were added to these inspections. Applicable to the Woodstock facility only.

4. Management of Change – A policy designed to identify and assess the potential impact that specific equipment, processes or workplace changes may have on worker health and safety. This includes decommissioned or mothballed buildings and structures.

5. Inactive Site Assessments – Internal employees were assigned to visit sites, other than their regular workplaces, to assess integrity and measures employed to prevent trespass onto property or buildings and structures. Based on the generated reports, action was taken to secure facilities where necessary.

6. Structural Integrity Assessments – Assessments of structural integrity of steel and concrete structures were required. Actions were taken to mitigate risks where identified.

7. Training and Orientation – A new hire orientation package was revised to include a specific documented reference to the old kiln area that access was not permitted without authorization. Applicable to the Woodstock facility only.

[65] I respectfully disagree with Mr Brady's submission on the application of Flex-N-Gate. A plain reading of all seven of the new procedures shows they all directly relate to actions required to comply with s. 72 of Regulation 851 and/or s. 25(1)(c) of the OHSA (see Exhibit 1, p 3) and/or the MoL order of 23 August 2017. In my view, both counsel have been overly generous in their interpretation of the seven procedures as mitigating factors on sentencing.

[66] I am satisfied that accepting those seven procedures as mitigating factors would undermine deterrence by treating statutorily required compliance as a mitigating factor (see para 23 of Flex-N-Gate in para 61 above).

[67] As well, when compared to the actions taken by Flex-N-Gate prior to its November 2003 incident (see para 34 of Flex-N-Gate in para 61 above), the actions taken by Lafarge were all post incident. As I noted above, Lafarge failed to observe the obvious as it should have, prior to the death at the Woodstock facility in 2017.

[68] Therefore, I do not agree that Lafarge's seven new procedures meet the test as mitigating factors as per para 32 of Flex-N-Gate.

4.7 The Use of an Embedded Auditor

[69] Above, I asked what other tools are available to increase deterrence. In my opinion, the use of an embedded safety auditor not only can achieve further deterrence but also improve safety where large corporations fail to observe the obvious when it comes to dangerous situations or practices.

[70] The embedded auditor is a relatively new concept which did not, to the best of my knowledge, exist when the Ontario Court of Appeal decided Cotton Felts. In their book Regulatory and Corporate Liability: From Due Diligence to Risk Management, The Cartwright Group Ltd, 2007, authors Todd L. Archibald, Kenneth E. Jull and Kent W. Roach addressed the concept in Chapter 12 on Sentencing in Corporate and Regulatory Offences (see p. 12-32 and 12-33). Their concept was to have a State auditor embedded in the offender corporation at the corporation's expense to monitor compliance and provide reports with the regulatory agency that would be privileged. They suggested that the expense of the embedded auditor to the corporation was to replace the fine which would otherwise have been levied.

[71] Archibald, Jull and Roach suggested multiple benefits to this arrangement. They stated:

The proposal would be superior to the imposition of fines in several respects. First, at present, fines go into the general revenue fund. There is no guarantee that a government will allocate these funds toward the increased enforcement in a particular area, whether it be securities, occupational health or the environment. Second, corporations would obviously abhor the prospect of the loss of privacy by being forced to have a State auditor on their premises. The presence of a State auditor would be the equivalent of a form of house arrest now used in the criminal justice system as part of a conditional sentence. Corporations might even challenge this order as constituting a violation of rights, but this challenge would likely fail. Our proposal would have a collateral benefit as a significant specific deterrent and as a general deterrent to other corporations.

[72] This is a concept which is available in the Criminal Code of Canada (see s. s. 732.1(3.1) (b). In R v. Maple Lodge Farms, [2014] O.J. No. 2085, Justice Kastner ordered (see para 18 of the Probation Order in Appendix "C" of Maple Lodge Farms) an independent expert (an embedded auditor by another name) "to oversee and report to the Court in relation to both expenditures and compliance with this Probation Order…".

[73] The embedded auditor concept has not yet expressly been set out in the Provincial Offences Act (POA). However, it has been ordered under s. 72 (3)(c) of the probation provisions of the POA in R. v. Quantex Technologies Inc, [2018] O.J. No. 4259; 2018 ONCL 546, a previous decision of mine.

[74] In crafting the probation order for an embedded auditor in Quantex, I recognized (with the agreement of counsel) that Ministry of Labour inspectors are not available to be seconded to corporations as State embedded auditors. Instead, the order designated a professional in private practice with the appropriate credentials, as the auditor. In addition, the sentence imposed did not eliminate the fine in lieu of the embedded auditor. Rather the cost to the corporation of the embedded auditor was in addition to a fine. In my view, this added to specific and general deterrence.

[75] Worth reading on the concept of an embedded auditor within the realm of the POA is His Honour Rick Libman's (Ontario Court of Justice) 2018 paper titled "No Body to Punish, No Soul to Condemn": Recent Developments in the Sentencing of Corporations under the Provincial Offences Act of Ontario (Humber Journal 2018): RegQuest, October 2018.

[76] It has been my experience that MoL prosecutors favour fines as sentences and have not yet appreciated the benefits of additional sentencing tools. However, in my opinion, Cotton Felts specifically contemplates additional sentencing options in para 19 when the Court of Appeal stated "To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations". Significantly, the Court did not state that the only option is a fine.

[77] In addition, as Carthy J.A. stated in para 93 of Ellis-Don (see para 27 above), an increase in the then maximum fine "makes it even more evident that the deterrent influence is intended to be in the pocketbook". Using both fines and an embedded auditor paid for by a corporation increases the costs to the corporation, thereby creating even greater deterrence. Of course, the benefits flowing from an embedded auditor's work and implementation of the actions needed to enhance safety, meet the previously discussed objectives of the OHSA.

[78] Consideration may need to be given by a sentencing justice as to whether a maximum fine, as set by the legislature, and an embedded auditor could be ordered together since it would increase the costs to the corporation above the maximum fine. However, imposing both may be appropriate where, in the justice's view, it is necessary to achieve the goals of sentencing (general and specific deterrence, protection of workers, rehabilitation, etc.) and where bearing the costs of doing so would not be disproportionate.

[79] Surprisingly, when I recommended to both counsel in our JPT discussions following the plea on 11 January 2019 that an embedded auditor be incorporated in the proposed resolution, they declined to consider it. I asked on 14 June 2019 why. They advised that it was not part of their originally agreed joint submission.

[80] The incident which caused the untimely demise of the Lafarge manager was an entirely preventable accident. Lafarge did not observe the obvious risks of the old kiln plant. As noted above, I do not know if the MoL inspectors observed those risks. The use of an embedded auditor is a viable sentencing tool to bring external expertise to such situations. Lives and injuries could be saved. Deterrence could be enhanced. In my view, counsel missed an opportunity when they declined to consider an embedded auditor.

[81] I appreciate why the concept of the embedded auditor has met resistance from defendant corporations. However, I am at a loss to understand why the Ministry of Labour has not embraced its obvious benefits as described by Archibald, Jull and Roach, in favour of a continued reliance solely on fines. I re-iterate that no joint submission following a plea has ever reached the maximum fine in Ontario regardless of the total number of deaths in a corporation's workplaces. I fail to understand how an ever increasing number of deaths in a large corporation's workplaces without the imposition of a maximum fine meets the requirement for deterrence.

5. CONCLUSION

[82] Again, I state that I will accept the joint submission with great reluctance and with considerable concerns about its deterrent value. What tips the balance in its favour is that the family has been waiting since 11 January 2019 for my decision to bring closure to the worst tragedy of their lives.

[83] I have found that the claims by Lafarge of going above and beyond to protect workers pursuant to the Flex-N-Gate belie the reality. Lafarge at best met the requirement of the OHSA and Regulation 851 with the additional steps it took after the tragedy. Lafarge's track record of deaths and critical injuries is deeply troubling.

[84] As well, as I have shown the data on the range of fines is not being presented to judicial officers in a meaningful form that might assist the judicial officer in making a considered assessment of the data. Tables 1, 2 and 3 say it all. In my view, the questionable presentation of meaningful data has created a scenario in Ontario whereby deterrence as contemplated under the OHSA is not being met. I understand how the situation which has evolved meets the interests of defendant corporations but I am at a loss to understand how it meets the interests of the Ministry of Labour or the public.

[85] It is my sincere hope that by reluctantly accepting this joint submission and allowing myself the opportunity to write this decision that it will begin a shift in the paradigm of the application of the OHSA in joint submissions on matters involving deaths and critical injuries in Ontario.

[86] Finally, I wish to reach back almost 40 years and adopt the words of Judge Dnieper from para 10 of Cotton Felts (see para 20 above). I quote:

"On subsequent offences I would have no hesitation whatsoever in fining the maximum of (one million five hundred thousand dollars) on every count. Somebody has to protect the (person) who might lose (their) arm."

[87] I add that an embedded auditor may well be part of a sentence for subsequent offences to ensure safety and deterrence.

[88] I trust the management of Lafarge and other large corporations are listening.

6. SENTENCE

[89] I agree to implement the joint submission of counsel. The fine will be $400,000 plus appropriate court costs and surcharges. Lafarge Canada Inc will have four months to pay the fine.

Released: 20 September 2019

Signed: Justice of the Peace M A Cuthbertson

APPENDIX A – EXHIBIT 1

AGREED STATEMENT OF FACTS

Between:

Her Majesty the Queen in Right of Ontario Ministry of Labour

Crown

– and –

Lafarge Canada Inc.

Defendant

1. At all material times, Lafarge Canada Inc. ("Lafarge") was a corporation duly registered pursuant to the laws of the Province of Ontario and an "employer" as defined by the Occupational Health and Safety Act.

2. Lafarge owns a decommissioned cement plant located at 683917 Road 68, Oxford 2 in Zorra Township, Oxford County (the "Plant"). The closed Plant is one part of an active Lafarge site that remains in operation performing, among other things, crushing, packaging and shipping. The Plant was decommissioned and ceased all cement production and mining operations in 2008.

3. On August 23, 2017, an Operational Procurement Manager employed by Lafarge sustained fatal injuries at the Plant. The deceased worker did not regularly work at the Plant, although he had attended and performed his work at the Plant on several occasions in the past. On the date of the accident, he was there to consult with third party contractors about the potential demolition of one of the decommissioned kiln buildings. He led the contractors on a tour of the kiln line and brought them to the upper levels of the kiln buildings onto an exterior walkway when a corroded section of the walkway collapsed and he fell nearly 30 feet to the ground below. Emergency responders transported him to a London hospital, but he succumbed to his injuries and died later that day. The cause of death was determined to be a pelvic fracture due to a fall from a height.

4. Investigation by Ministry of Labour revealed that the exterior walkway was corroded to the point that it had inadequate structural integrity and could not support the worker's weight. There was no bracing or shoring in place to prevent its collapse and inadequate barriers, locks or other safeguards in place preventing access to the kilns or the exterior walkways.

5. Section 72 of Ontario Regulation 851 provides that where a structure is damaged to the extent that the collapse of any part of the structure is likely to occur and cause injury to a worker, the structure shall be braced and shored to prevent the collapse or effective safeguards shall be provided to prevent access to the area.

6. On August 23, 2017, Lafarge Canada Inc. failed as an employer to ensure that the measures and procedures prescribed in section 72 of the Ontario Regulation 851 were carried out at the workplace.

Prior Record

7. On August 25, 2003, Lafarge was convicted of failing as an employer to ensure that there was a guardrail around an uncovered floor opening, contrary to section 25(1)(a) of the Act in relation to an incident in which a worker was killed. Lafarge was fined $150,000, plus Victim Fine Surcharge.

8. On June 7, 2007, Lafarge was convicted of failing as an employer to take every precaution reasonable for the protection of a worker contrary to section 25(2)(h) of the Act in relation to an incident in which a worker was killed. Lafarge was fined $150,000, plus Victim Fine Surcharge.

9. On January 20, 2010, Lafarge was convicted of failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker contrary to section 25(2)(h) of the Act in relation to an incident in which one worker was killed and two other were injured. Lafarge was fined $350,000, plus Victim Fine Surcharge.

10. On October 12, 2017, Lafarge was convicted of failing as an employer to ensure that the power supply to electrical equipment was locked out while work was being performed on the equipment. The conviction related to an incident in which a worker sustained first and second degree burns to his hands. Lafarge was fined $115,000, plus Victim Fine Surcharge.

Relevant Legislation

Occupational Health and Safety Act

Duties of employers

25 (1) An employer shall ensure that,

(c) the measures and procedures prescribed are carried out in the workplace

R.R.O. 1990, Reg. 851: Industrial Establishments

72.(1) Where a structure is damaged to the extent that a collapse of the structure or any part of the structure is likely to occur and cause injury to a worker,

(a) the structure shall be braced and shored to prevent the collapse of the structure;

or

(b) effective safeguards shall be provided to prevent access to the area.

(2) The bracing and shoring or other safeguards prescribed by subsection (1) shall be installed progressively to ensure that a worker installing the bracing and shoring or other safeguards is not in danger.

APPENDIX B – SENTENCING DATA TABLES

Table 1: OHSA Convictions and Fines for Workplace Deaths

Case	OHSA Convictions	Total Deaths in Workplaces	Highest Fine for a Death	% of Max Fine of $500,000
H J Heinz Co of Canada Ltd (Unreported March 21, 2002)	2	1	$200,000	40%
Canadian Waste Services Inc (Unreported April 29, 2004)	3	1	$300,000	60%
Metro Ontario Inc (Unreported March 8, 2011)	9	1	$350,000	70%
Philip Services Corp (2001 CarswellOnt 10630)	3	2	$250,000	50%
Con-Drain Co (1983) Ltd (2008 CarswellOnt 9834)	3	2	$250,000	50%
Ford Motor Co of Canada Ltd (Unreported May 25, 2010)	11	2	$425,000	85%
Inco Ltd (1996 CarswellOnt 7079)	Exact # unknown but more than 3	Exact # unknown but at least 3	$175,000	35%
Dofasco Inc (1999 CarswellOnt 7504)	6	3	$200,000	40%
Lafarge (Current Matter)	5	4	$400,000	80%
Inco Ltd ([2004] O.J. No. 5993)	14	10	$375,000	75%

Table 2: Fine Ranges by Total Deaths

Total Deaths for Corporation – All Convictions	Range of Highest Fine for a Death	% of Maximum of $500,000
1	$200,000–$350,000	40%–70%
2	$250,000–$425,000	50%–85%
3	$175,000–$200,000	35%–40%
4 (Lafarge – Current Matter)	$400,000	80%
10	$375,000	75%

Table 3: Proposed Progressive Fine Ranges Based on Total Deaths

Total Deaths for Corporation – All Convictions	Range of Highest Fine for a Death based on Single Death Range but Multiplied by Total Deaths
1	$200,000–$350,000
2	$400,000–$700,000
3	$600,000–$1,050,000
4	$800,000–$1,400,000
5	$1,000,000–Maximum of $1,500,000
6+	Maximum of $1,500,000

Note: Maximum Fine is Now $1,500,000.