Employer was originally acquitted after fatal accident, but then convicted; Crown sought $400,000 fine but court decided on $275,000
In the wake of the Alberta Court of Appeal's affirmation of its 2012 health and safety conviction, the Alberta Court of Queen’s Bench has released the sentencing decision in R. v. XI Technologies Inc. A sentencing that involves a hefty fine.
The Court of Queen’s Bench sentenced XI Technologies, a Calgary tech firm, to a fine of $275,000, inclusive of the victim fine surcharge. The Crown had proposed a fine of $400,000, but the employer’s counsel argued that figure was too high without specifying a range of what would be appropriate.
The court considered a number of aggravating factors, including: the Alberta legislature’s increase to the maximum fines for a first offence under the Occupational Health and Safety Act from $150,000 to $500,000; the goal of deterrence; and the fact that the accident had resulted in a fatality. The court also considered a number of mitigating factors such as: the work environment was not the usual workplace and the activities the employee was performing were unique; the employer was not operating the machine to make a profit; the risk of death was not probable; the employer had taken sincere — albeit inadequate — steps to ensure safety and so, although the employer was negligent, it was not knowingly non-compliant with safety standards or recklessly indifferent towards employee safety; the employer was genuinely remorseful; the employer did not have a prior record; and the employer had made a donation to fund a memorial bursary.
This decision confirms that Alberta courts will continue to impose significant fines for breaches of the occupational health and safety legislation, particularly where those breaches result in a fatality. It also highlights that employers must remain vigilant to safety issues in unexpected circumstances where employees are operating outside of their core work functions and that the employer’s ultimate responsibility for safety cannot be delegated to employees or third parties. Finally, this case provides that while employer donations will be considered as a mitigating factor in sentencing, they will not be credited dollar-for-dollar.
For more information see:
• R. v. XI Technologies Inc., 2013 CarswellAlta 2124 (Alta. Q.B.).
Cristina Wendel is a partner in the Labour and Employment Practice Group with Dentons Canada LLP in Edmonton. She can be reached at (780) 423-7353 or [email protected] Cristina's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.