Canadian Safety Reporter

4 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | December 2017 | News components from racks in the warehouse with an order picker — a lift truck used to pick cus- tomer orders from storage racks. The racks were large and made of steel and contained cardboard boxes of various sizes. The order picker Singh oper- ated was attached to the opera- tor platform and could be moved up and down to allow the opera- tor 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 modifica- tion 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, cre- ating a slight downward angle towards the far edge. While working on the modi- fied picker, Singh wasn't wearing fall protection equipment and he was wearing dress shoes instead of safety shoes. While the plat- form 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 plat- form. Emergency responders were called but when they ar- rived, they pronounced Singh dead. The cause of death was lat- er 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 medi- cation at the time of the fatal accident. Examination of the scene indicated Singh was un- conscious when he fell and the fall was caused by a seizure. New Mex had called an ambulance to the warehouse on two previ- ous 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 com- pany 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 direc- tors, Baldev Purba and Rajinder Saini, were charged with and pleaded guilty to the following charges under the Ontario Oc- cupational 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 ex- pressed remorse at Singh's death and helped his family to make arrangements and receive work- ers' 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 sentenc- es, saying they were in tough fi- nancial straits and had to pay the company's fine themselves. A much lower fine would still serve the purpose of deterrence with- out 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 acci- dent, the company had to close down for a while to comply with orders and training and it ulti- mately 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 sta- tus was in dire straits. However, the court also not- ed 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 "demonstra- bly unfit." The court found that histori- cally, significant fines were effec- tive in serving as a deterrent in such circumstances and incar- ceration was generally only im- posed 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 convic- tions 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 incarcera- tion 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 vic- tim 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.). Fines < pg. 1 Jail time usually only given to repeat offenders Credit: Shutterstock/Petinov Sergey Mihilovich

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