Written by Jennifer Miller, Q.C., Simon Foxcroft and Mathieu LaFleche

A precedent setting occupational health and safety (OHS) case was heard in the Alberta Court yesterday. For the first time in Alberta's history, a worker who was also a company director was sentenced to jail for a period of four months following his conviction under the Alberta Occupational Health and Safety Act (the Act).

In April 2015, Frederick Tomyn had been hired as a day labourer by Sukhwinder Singh Nagra to dig a trench behind a home development in Edmonton and install a new water and sewer connection. Mr. Nagra was both an employee and a director of Sahib Contracting Inc. (the employer). Mr. Tomyn was an AISH recipient and had previously been supported by the Bissell Centre. He had no prior experience or safety training before commencing work for Mr. Nagra and received no relevant training from Mr. Nagra or the employer.

Despite having no prior training in construction or excavation, Mr. Nagra proceeded to dig a deep trench using a backhoe and directed that Mr. Tomyn enter the trench to connect pipes. The trench collapsed, burying Mr. Tomyn alive. Mr. Tomyn did not survive.

On a contested sentencing hearing after a guilty plea by the employer to failing to comply with the general duty of an employer under section 2(1)(a)(i) of the Act, the Crown Prosecutor sought a $425,000 fine together with a victim fine surcharge of $63,750. While the Defence Counsel sought a lower fine, the Court sentenced the employer in accordance with the Crown's submission.

Mr. Nagra plead guilty to failing to comply with the general duty of a worker under section 2(2)(a) of the Act. After a contested sentencing hearing, the Crown Prosecutor sought a $40,000 fine together with a victim fine surcharge. However, the Court concluded that the extreme facts of the case warranted jail time and ordered Mr. Nagra to serve four months in incarceration and to pay a $100 victim fine surcharge. The Court made it clear that this level of sentencing was required to ensure that others would be deterred from engaging in similar violations of this critical legislation and made note that Mr. Tomyn was a particularly vulnerable worker.

The prime contractor for this work site, Haya Homes Ltd., was convicted earlier in May of 2017 for failing to comply with the general duty of a prime contractor under section 3(3) of the Act and was sentenced on a joint submission to a fine of $111,250 inclusive of the victim fine surcharge; a $50,000 section 41.1 Order in favor of the Bissell Centre and two years of corporate probation on terms recommended by Alberta OHS.

This case is a reminder to employers and workers everywhere that understanding and complying with OHS laws is vital and that infractions can result in extremely serious outcomes for everyone involved. If these laws are not thoroughly known or compliance is uncertain, this is a wake-up call for action.