Court File and Parties

Court: ONTARIO COURT OF JUSTICE Date: 2024-03-21 Court File No.: Toronto 21100714

Between: THE ONTARIO MINISTRY OF LABOUR, IMMIGRATION, TRAINING AND SKILLS DEVELOPMENT

— AND —

LIMEN GROUP CONST. (2019) LTD., OCTAVIO TOME, and EMANUEL TAVARES

Before: Justice Newton-Smith

Heard on: April 11-14, 24-27, May 8-10, June 9, 16, 26, 27, 29, July 25-26, September 12 and 14, 2023 and February 28, 2024

Reasons for Sentence released on: March 21, 2024

Counsel: W. Robinson, G. Adams, for the prosecution N. Keith, for the defendants Limen Group, Octavio Tome and Emanuel Tavares

REASONS FOR SENTENCE

NEWTON-SMITH J.:

I. OVERVIEW

[1] On December 14, 2020 a concrete block being hoisted by crane over a construction site at 38 Widmer Street in Toronto fell and crushed Andrew Orfanakos, a worker on the site, to death.

[2] The corporate defendant, Limen Group Const. (2019) Ltd. and two individuals, Mr. Tome and Mr. Tavares, were charged under the Occupational Health and Safety Act [OHSA] in relation to this incident.

[3] After a lengthy trial the defendants were convicted of the following OHSA offences:

(1) The corporate defendant Limen Group, failed, as an employer, to ensure that measures and protections prescribed by s. 172(1) of the Ontario Regulations were carried out at a workplace, contrary to s. 25(1)(c) of the OHSA:

In particular: The defendant failed to ensure that waste concrete blocks to be hoisted by crane utilized attachment points that were suitable for that use.

(2) The corporate defendant Limen Group, failed, as an employer, to take every precaution reasonable in the circumstances for the protection of a worker, contrary to s.25(2)(h) of the OHSA:

In particular: The defendant failed to take the reasonable precaution of ensuring that workers engaged in the movement of waste concrete blocks at a construction site were sufficiently trained and/or supervised regarding the hazard of using embedded rebar as the hoisting points.

(3) The defendant Octavio Tome, failed, as a supervisor, to take every precaution reasonable in the circumstances for the protection of a worker, contrary to s. 27(2)(c) of the OHSA:

In particular: The defendant failed to take the reasonable precaution of ensuring that workers engaged in the movement of waste concrete blocks at a construction site were sufficiently trained and/or supervised regarding the hazard of using embedded rebar as the hoisting points.

(4) The defendant Emanuel Tavares, failed, as a supervisor, to take every precaution reasonable in the circumstances for the protection of a worker, contrary to s. 27(2)(c) of the OHSA:

In particular: The defendant failed to take the reasonable precaution of ensuring that workers engaged in the movement of waste concrete blocks at a construction site were sufficiently trained and/or supervised regarding the hazard of using embedded rebar as the hoisting points.

[4] The facts are outlined in detail in my reasons for judgment on the trial. In short, the accident occurred at the construction site of a large 48 story condominium building in downtown Toronto. At the time formwork was being completed on the below ground parking levels of the build.

[5] Limen Group was the employer of the formwork crew. Mr. Tome was a senior supervisor with overall responsibility for the formwork crew. He was not on site at the time of the accident. Mr. Tavares was a working foreman and on site at the time of the accident. He was described as the micro level manager of the formwork crew and in Mr. Tome’s absence he was in charge.

[6] On the day of the accident loads of waste concrete were being removed from the lower levels of the construction site by crane. Mr. Solc was the swamper rigging the loads being hoisted out. He took a short cut and rigged the three loads improperly. Instead of using one of the four safe and acceptable methods of rigging, he simply hooked the crane chain to a piece of rebar embedded in the concrete. The third load failed, falling on Mr. Orfanakos and crushing him to death.

[7] Mr. Tavares was on site on the day of the accident but not present with Mr. Solc when he rigged the fatal load. On previous occasions Mr. Tavares had participated in rigging loads of waste concrete with Mr. Solc and on at least one occasion had instructed Mr. Solc, to “just hook it up and get it out”.

[8] It is the position of the Crown that the corporate defendant Limen Group should be fined $300 000 on each count for a total of $600 000. The Crown’s position for the individual defendants is that Mr. Tome should be fined $15 000 and Mr. Tavares $25 000.

[9] It is the position of the defence that the corporate defendant Limen Group should be fined $66 000 per count for a total of $132 000. For the individual defendants, Mr. Tome and Mr. Tavares, the defence submits that a fine of $5 000 each is appropriate.

[10] These are my reasons for sentence.

II. SENTENCING FOR OHSA OFFENCE

[11] The leading case on sentencing for OHSA offences is the 1982 decision of the Ontario Court of Appeal in R. v. Cotton Felts Ltd., [1982] O.J. No.178 (C.A.).

[12] In Cotton Felts the Court of Appeal, at para 19, summarized the factors to be considered on sentence:

The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of 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.

[13] The Court further held, at para.22, that, “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 license fee for illegal activity.”

[14] Cotton Felts was affirmed more recently in Ontario (Ministry of Labour) v. New Mex Canada Inc., [2019] ONCA 30.

[15] In New Mex Paciocco J. affirmed that moral blameworthiness plays a role in regulatory sentencing and that deterrence, and particularly general deterrence, is paramount. He found this to be the case even when sentencing first offenders and held, at para 102, that the question to be asked is:

What amount of fine is required to achieve general and specific deterrence, and would otherwise be appropriate bearing in mind the principles of sentencing, including proportionality, and parity?

[16] In New Mex the trial judge had sentenced the corporate defendant to a total fine of $250 000, which the summary conviction appeal judge had varied to $50 000. Justice Paciocco reviewed the range of fines where workers were fatally injured, and found, at para 106, that it revealed the following:

…more than a dozen other $250 000 fines imposed in fatality cases, but virtually all of the defendants were large companies, typically, publicly traded companies, international companies, municipal corporations or public utilities. Even fines over $150 000, but under $250 000, tend, with the occasional exception, to be imposed on large manufacturers, business with employees in the hundreds or businesses engaged in large-scale projects. Fines over $130 000, but under $150 000, tend to be imposed on firms with dozens of employees or more, or that work on large-scale projects.

[17] Justice Paciocco went on, at para 107, to state that:

To be clear, by making these observations I should not be taken as suggesting that the fines that are to be imposed on large corporations, public utilities and municipalities, should generally fall in the $250 000 or less range. Recently, the maximum OHSA fines for corporate offenders were increased from $500 000 to $1 500 000.

[18] I note that the accident in New Mex had occurred in 2013, and it was in 2017 that the maximum fines were increased.

[19] With respect to specific deterrence, Justice Paciocco observed that New Mex was a small financially precarious company that was barely surviving and that the fine as originally imposed by the trial judge did not, “meaningfully take into account the size and activity of the corporation” and was very high compared to similarly situated defendants.

[20] A few years earlier, in R. v. Matcor Automotive Inc., 2017 ONCJ 560, Justice Monahan, in considering what the appropriate range of sentence was for OHSA violations involving catastrophic injuries made the following observation at page 31:

I consider that the $70 000 to $170 000 range referred to by Justice Hourigan in Servello is most certainly not the range of sentence to be imposed where an offender is found guilty of a serious occupational health and safety violation or violations after a contested trial and a catastrophic injury has been suffered by a worker due to an occupational health and safety violation. The Servello case has some application in the guilty plea context. However, I note as well that Servello is now seven years old, so it is dated and the question of inflation must also be considered.

[21] Matcor was an appeal from a sentence imposed in 2016. In that case a total fine of $270 000 was upheld. Matcor was described as “a substantial corporation within a broader group of companies”.

[22] In 2017 the maximum penalties were increased. For corporate defendants the increase was from $500 000 to $1 500 000. For individuals it was increased from $25 000 to $100 000.

[23] An increase in the maximum penalty is a factor to be considered and shifts the landscape of prior sentencing ranges upwards: R. v. Friesen, 2020 SCC 9, R. v. Hoyek, 2021 NSSC 178. Further, as Justice Monahan observed in Matcor, where the penalty being imposed is financial, inflation is also a factor to be considered. What was a suitable fine in 1995, or 2005, or even 2015, is unlikely to be suitable in 2024.

Summary of the Range

[24] The cases reveal a range of fines for corporations for workplace accidents involving fatalities to be generally between $200 000 and $300 000 and going up to $700 000. I note however, that almost every case occurred prior to the increase in the maximum fines, which tripled the previous maximum for corporations.

[25] In R. v. 216858 Ontario o/a Upper Crust, an unreported ONCJ decision of Clark J. from May 31, 2021, a total fine of $700 000 was imposed for two separate incidents where workers were killed. That case postdated the tripling of the maximum penalty for a corporation. It is, however, of limited value as it was a sentencing following a guilty plea.

[26] With respect to individual defendants, fines, for cases involving fatalities, prior to the increase in the maximum penalty, was generally in the $10 000 - $15 000 range.

III. THE CIRCUMSTANCES OF THIS CASE – THE COMPLEX OF CONSIDERATIONS

The Size and Scope of Activity of the Corporate Defendant

[27] The size of the corporation and the scope of their economic activity is one of the “complex of considerations” outlined in Cotton Felts and re-affirmed in New Mex.

[28] In evidence at trial was the contract between Limen Group, the contractor, and Concord Construction, the owner, for $21 509 335.

[29] Also in evidence was a large volume produced by Limen Group and entitled “Health and Safety Procedures for Limen”. In those materials Limen Group described itself as a full-service construction firm providing nationwide services across multiple industries.

[30] At the time of the accident Limen Group was responsible for the majority of workers on site and was the primary subcontractor. The project was a large condominium building 48 stories tall with 7 levels of underground parking in downtown Toronto.

[31] Mr. Keith, on behalf of his clients, submits that Limen Group is a medium sized company with only 46 current employees and 53 at the time of the accident. No other information, financial or otherwise, was presented with respect to the size and scope of the economic activity of the company.

[32] From the evidence that is before the court it is clear that Limen Group is a company that operates as part of a larger brand that represents itself as a nationwide leading construction contractor. At the time of the accident it was the primary subcontractor for a multimillion dollar large downtown condominium build where the accident occurred.

[33] The corporate defendant, Limen Group, cannot be described as a small financially precarious company that is barely surviving, as Justice Paciocco had described New Mex to be.

The Individual Defendants

[34] With respect to the individual defendants, other than the fact that both Mr. Tome and Mr. Tavares are employed by Limen and their respective roles, there is no evidence before the court as to what their financial situations are. There is no evidence before me as to what impact the size of the fine proposed by the Crown would have on them.

The Extent of the Actual and Potential Harm

[35] The actual harm in this case is a tragedy. A young man working on the site was killed, many more were in harm’s way.

[36] The potential for harm was even greater. Three precarious loads were lifted over the job site during an active work day. This was not a one-off occurrence – on that day alone it happened three times.

The Maximum Penalty Prescribed by Statute

[37] The maximum penalty for a corporation is $1.5 million.

[38] The maximum penalty for an individual is $100 000.

Mitigating Factors

[39] Since the accident Limen Group has put in place a more robust system for ensuring that loads are properly rigged.

[40] Neither Limen Group nor the individual defendants have any prior convictions.

[41] At the time of the accident Limen Group had health and safety measures in place.

[42] While not a mitigating factor, the accident was directly caused by the contributory negligence of the worker Mr. Solc, who improperly rigged the fatal load.

IV. SENTENCE IMPOSED

[43] Hoisting waste concrete blocks up and out of a construction site is a highly dangerous activity. Faulty rigging carries a likelihood of death for anyone below. That is what happened here. Andrew Orfanakos was crushed to death because a load of waste concrete was carelessly, hastily, and improperly rigged to a crane and hoisted over an active work site. Had the load been properly rigged, had there been proper and adequate supervision of the rigging process, this would not have occurred.

[44] Having considered the complex of considerations, the range of fines imposed under the previous maximum penalties, the current maximum penalties and the need to enforce regulatory standards by deterrence I find that the following fines are appropriate in this case:

• for the corporate defendant Limen Group $300 000 per count for a total of $600 000
• for the defendant Mr. Tome $10 000
• for the defendant Mr. Tavares $15 000

[45] The defendants are granted 12 months to pay the fines.

Released: March 21, 2024 Signed: Justice Newton-Smith