Fines reduced, incarceration overturned after fatal workplace fall

Purpose of penalties for lack of proper fall protection is deterrence, not financial ruin for small company and its directors: Court

An Ontario small business and its two directors who were convicted of serious safety violations after a worker fell to his death have had their fines reduced and prison sentences overturned by the Ontario Court of Justice.

Shangar Singh was an employee of New Mex Canada, an importer and retailer of furniture and furniture accessories based in Brampton, Ont. New Mex’s facility included a furniture showroom at the front and a large warehouse in the back where furniture was stored.

Singh’s job involved unloading boxes containing furniture components from racks in the warehouse with an order picker — a lift truck used to pick customer orders from storage racks. The racks were large and made of steel and contained cardboard boxes of various sizes.

The order picker Singh operated was attached to the operator platform and could be moved up and down to allow the operator to store or retrieve stock at various heights. The machine’s manual specifically required the operator to “attach safety belt and tether” before starting, as there was a fall hazard when the platform was raised and the operator was working at heights.

On Jan. 16, 2013, the 56-year-old Singh was unloading boxes with an order picker that had been modified. The modification involved an extra platform added to the operator platform, supported by the order picker’s forks and tack-welded to the operator platform. The added platform was made of polished steel without any slip-resistance features and it didn’t have a guard rail around it — meaning someone working on it would be exposed to two or three open sides. The unsupported end of the platform also sagged slightly when in the raised position, creating a slight downward angle towards the far edge.

While working on the modified picker, Singh wasn’t wearing fall protection equipment and he was wearing dress shoes instead of safety shoes. While the platform was elevated about 12 feet from the ground, Singh fell off it and landed on his head.

A co-worker found Singh on the floor under the raised platform. Emergency responders were called but when they arrived, they pronounced Singh dead. The cause of death was later determined to be blunt force trauma to the head.

No safety precautions or training

When an Ontario Ministry of Labour inspector investigated, it was discovered that Singh had a history of seizures and had been taking an anti-epileptic medication at the time of the fatal accident. Examination of the scene indicated Singh was unconscious when he fell and the fall was caused by a seizure. New Mex had called an ambulance to the warehouse on two previous occasions when Singh had fainted.

The inspector also found two heavy boxes on the order picker’s platform that would have caused it to sag further and create a slip hazard. In addition, there was no health and safety training provided to New Mex workers in the warehouse and the company had been ordered twice in 2007 to inspect its lifting devices and racking, along with a notice of non-compliance in 2008 for failing to provide an engineer’s report on the racking.

New Mex and its two directors, Baldev Purba and Rajinder Saini, were charged with and pleaded guilty to the following charges under the Ontario Occupational Health and Safety Act:

• Failing as an employer to provide information, instruction and supervision to protect the safety of the worker

• Failing as an employer to ensure that the measures and procedures prescribed in health and safety regulations were carried out in the workplace

• Failing as directors to take all reasonable care to ensure compliance with the act and regulations (two counts each).

Purba and Saini both expressed remorse at Singh’s death and helped his family to make arrangements and receive workers’ compensation benefits. New Mex — a small company that had no previous safety convictions — lost most of its employees and business following the accident.

New Mex was fined $125,000 for each of the two counts against it and Purba and Saini were each sentenced to 25 days of imprisonment, to be served intermittently, plus 12 months’ probation during which they must complete the construction health and safety intermediate programme.

New Mex and the directors appealed the fines and sentences, saying they were in tough financial straits and had to pay the company’s fine themselves. A much lower fine would still serve the purpose of deterrence without financially destroying them, Purba and Saini argued.

The court noted that New Mex was a small business and Pruba and Saini were not just the directors but also workers and supervisors. After the accident, the company had to close down for a while to comply with orders and training and it ultimately lost $700,000 in the 2013 fiscal year. In addition, they had no prior safety convictions, they showed remorse for the accident and the company’s financial status was in dire straits.

However, the court also noted that the directors weren’t aware of their responsibilities, didn’t provide employees with fall protection equipment, and were aware of Singh’s history of seizures but still allowed him to work at heights.

The court determined that the fine imposed on New Mex and the incarceration to which Pruba and Saini were sentenced were “significantly out of range of sentences regularly imposed by courts for these types of offences and for these types of offenders” and as a result were “demonstrably unfit.”

The court found that historically, significant fines were effective in serving as a deterrent in such circumstances and incarceration was generally only imposed on individuals with prior convictions where fines hadn’t worked as deterrents. Though the two directors “demonstrated a very concerning lack of care for their employees,” such convictions were meant to reach public policy objectives — in this case employee health and safety — as opposed to punitive purposes.

The court reduced the fines against New Mex to $25,000 for each of the two counts against it and overturned the incarceration sentences against Pruba and Saini. Instead, the directors were fined $7,500 for each of the two counts against them, for a total of $15,000 each. A standard victim surcharge of 25 per cent was applied to all of the fines.

For more information see:

Ontario (Ministry of Labour) v. New Mex Canada Inc., 2017 CarswellOnt 14918 (Ont. C.J.).

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