IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. New Glasgow (Town), 2008 NSPC 15
Date: April 8, 2008
Docket: 1781872 & 1781876
Registry: Halifax
Her Majesty the Queen
v.
Town of New Glasgow
DECISION
Judge: Jamie S. Campbell
Oral decision: April 8, 2008
Charges: Occupational Health and Safety Act;
Section 74(1)(a) and 74(1)
Counsel: Crown - Peter Craig
Defence - Frank DeMont
By the Court:
[1] I have no direct evidence about what kind of man Michael Bonvie was. Like anyone else, he probably was not perfect. I am confident though, in saying that he must have been a good man.
[2] The famous people of history who are remembered for their conquests, their inventions, their creativity or their courage are memorialized in any number of tangible ways. The greatest monuments though are not found in stone.
[3] As a working man, Michael Bonvie has the greatest of monuments. There is no building named for him. There is no statue. There will likely be no biography written commemorating his life. The greatest monument to a man is the way in which he is regarded by his family.
[4] Michael Bonvie’s monument is a family who still loves him for who he was, not as a superman and not as a saint but as a good man and a father, who through it all, just tried to do his best.
[5] People have always struggled to make sense of death. Whether it be in purely secular convictions, or based on a religious faith, we look for ways to understand the incomprehensible, to impose order on what seems to be chaotic or to find some fairness in things that just are not fair. We want to think that people do not die “in vain”. We hope that some greater lesson can be learned.
[6] This sentencing will not make things right. It will not make sense of Michael Bonvie’s death or attempt to create a lesson from it. This process will not bring justice to a situation that is unfair.
[7] This sentencing is with respect to two offences under the Occupational Health and Safety Act. The Town of New Glasgow has pled guilty to one offence contrary to s. 74(1)(a) of the Act involving its failure, as an employer, to ensure that the wall of a trench is supported by adequate shoring or bracing, or to ensure that an adequate trench cage is used. It has also pled guilty to the offence of failing to ensure that no person enters an excavation or trench 1.2 metres or more in depth unless a proper ladder is installed.
[8] The mundane nature of the circumstances of this case make Michael Bonvie’s death all the more bitter. In the summer and fall of 2006, the staff of the Town of New Glasgow was to plan and carry out an upgrade to the sewer and water expansion in the Town of Westville. New Glasgow and Westville share Public Works and Transportation Services.
[9] The Town decided to carry out the work with a relatively small increase in its workforce. Michael Bonvie was hired to work on the project. He had 20 years of experience and was qualified to work in trenches. When this incident happened, he had been working for the town for all of four days.
[10] As the project moved along, at one point, the Town workers needed to dig a trench that was deeper than had been required before. The trench had been dug to a depth of about ten feet.
[11] The crew began their work on October 26, 2006 at about 8:00 a.m. They began where they had left off the day before. The excavator operator opened the trench and at some point realized that there was a lose pin in the bucket of the excavator. At about 9:00 a.m., mechanics from the shop on Park Street in New Glasgow were called in.
[12] The Lead Hand on the job believed that the ground where the trench was, appeared to be stable. He and Mr. Bonvie made a decision to get the job done quickly. They immediately went into the trench to lay down the pipe. The ladder had been removed from the trench because, in the words of the Lead Hand, “there wasn’t enough room”. There were two ladders on site.
[13] The Town of New Glasgow had a safety policy requiring a ladder to be in place “wherever possible”. That policy is not consistent with section 167 of the Occupational Safety General Regulations. The policy also requires sloping “after four feet in good soil to a one to one according to excavation regulations”. That standard was not applied.
[14] The policy also states that trench cages are to be used if the property does not allow proper sloping. The Town of New Glasgow however, did not even own a trench cage.
[15] The Supervisor on the project was not on-site at the time. He had not signed-off on the hazard assessment form for that day. His supervisor was away at a training course.
[16] The Town Engineer was on his way to the site at about 9:30 a.m. when he received the call that the trench had collapsed.
[17] The Lead Hand was injured in the collapse and required treatment at the Aberdeen Hospital.
[18] Michael Bonvie was taken to the Aberdeen Hospital. His wife, April Law-Bonvie sat with him. Her family went to pick up the couple’s daughters, Madison and Bryden. She went to the front door of the hospital to meet her girls. She had to tell them that their father was dead. She held them in her arms as they screamed. As she says, “That piercing scream is in my head every single day”.
[19] April Law-Bonvie and her two daughters suffer the consequences of that day, every day. Her Victim Impact Statement is eloquent and powerful. A court document is a strange, but in this case, entirely appropriate place to find such a pure and sincere statement of unconditional love. It is not a statement of self pity. It is not a call for vengeance. It is a testament to the impact that one man’s death can have on an entire family and on an entire community.
[20] “ I miss him desperately, there are no words.... When I do sleep, I pray I will dream about him so I can talk to him and hear his voice again.”
[21] The last time 14 year old Madison saw her dad, he said “Love you Duckie” and she said “I love you too Daddy.” She is upset by how sad her sister and mother both are now. “Everyone says how much I’m like Daddy, and he doesn’t get to see that.”
[22] Twelve year old Bryden has a notebook. She writes letters to her father in it every day. At Christmas she drew a card to her father. That card deserves to be quoted:
“Dear Dad: I love you more than ever and I need you more than ever, now can you come back please. Oh ya, Merry Christmas, I love you.”
[23] As Madison says, “And what makes me mad the most is how it could have been prevented. I’m sad and angry and no one can do anything about that....[N]obody can change anything and bring Daddy back”.
[24] There are no more sad or more profoundly thoughtful words that could be said about this case. Nothing we do will undo what has happened. Nothing we do will bring this father home to his children. Nothing we do will dull their pain for even a moment. The sentencing in this matter must have a firm grip on that hard reality.
[25] The consideration of better and more integrated approaches to safety, of creating and maintaining a culture of safety in the workplace, of creative sentencing options and of deterrence are sadly the only responses we can offer to a 12 year old girl whose letters to her dad will go unanswered.
[26] It is tempting to say that Michael Bonvie’s death will cause others to be more careful. It will prompt a review of the Town’s safety policies and make it become a leader in workplace safety. Pictou County has already lost well more than its share. The lesson was not learned, even moments away from one of the country’s most infamous pitheads. Michael Bonvie’s death was not, is not, and will not be a lesson.
[27] Sentencing a town is a concept that likely makes little sense to most people. Is the town the taxpayers who pay property taxes? Is it all of the residents? They will bear the financial burden of whatever is imposed even though they were not in any way directly involved. The most safety conscious ratepayer will see his or her tax rate reflect in some way what has happened.
[28] Is the town the members of council? Is it the current members or all members who served over a period of time when the culture of safety disintegrated, if it existed at all? Is it the members of the town’s staff? If so, is it the senior staff involved with making and enforcing policy, or is it those members of staff who follow or chose not to follow policy?
[29] Legal counsel for the Town of New Glasgow said sincerely that the members of council, the staff and the people of the Town were shaken by what had happened. That sense of remorse is sincere. The Town, as an organization, has taken prompt responsibility for what has happened.
[30] What happened to Michael Bonvie was not the result of anyone’s decision to cut corners or save money by sacrificing safety. Each employee who took an unreasonable risk, each person who saw them and did nothing, each administrator or politician who knew nothing or did nothing, and everyone, whether in the workplace or not, who treated safety as an unimportant issue, contributed. Each contributed in his or her own way to differing degrees.
[31] Everything we do has consequences. Some we know. Some we do not know. The causes of Michael Bonvie’s death are simple and complicated. Madison is right. It could have been prevented. It did not have to happen. The list of people who, in the long chain of events leading up to it who could have prevented it, is long. The list of those who contributed to it, in large and small ways, is even longer.
[32] Counsel for both the Town of New Glasgow and the Crown filed briefs which are notable for their comprehensive and precise discussion of the law, as well as for their balanced and measured tone. Clearly, both counsel have shown an appreciation for both the legal and human aspects of this case.
[33] Those briefs have set out with commendable clarity the principles involved and, in some considerable detail, the responses of courts in situations where a death has resulted from a failure to comply with Occupational Health and Safety Regulations. There is no disagreement on the law to be applied.
[34] The most important factor to be considered, is the need to enforce regulatory standards by deterrence. This approach has been applied consistently in Nova Scotia.
[35] Anyone who has even a passing knowledge of the history of industrial disasters in Pictou County will sense the cruel irony in the situation. The paramount concern in sentencing those found guilty of these offences, is to deter them and others from doing this kind of thing again. In Pictou County, of all places, the real potential for human tragedy arising from circumstances of this kind should already be too well known.
[36] While deterrence is a paramount factor, the court must also consider retribution. It is a way to condemn the behaviour involved and to reinforce the moral value of the standard that was violated. While to some, these may seem to be technical violations, the sentencing is a way to make clear that the failure to follow them and taking risks of the kind taken here, are not merely technical issues. These failures have very real human consequences.
[37] The court must also consider the potential for rehabilitation and reform. This involves a consideration of ways to help the town, in this case, from repeating the offence.
[38] The Ontario Court of Appeal decision in R. v. Cotton Felts Ltd. (1982) 2 C.C.C. (3d) 287, sets out that a number of factors are to be considered when imposing sentences dealing with occupational health and safety matters. They include the size of the company involved, the scope of the economic activity in issue, the extent of the actual and potential harm to the public and the maximum penalty prescribed by statute.
[39] As with any sentencing, the court must consider the circumstances of the offence and the circumstances of the offender. There are various lists that can be set out, but basically they all come down to that.
[40] In considering the offence itself, a critical consideration is the fact that Michael Bonvie was killed.
[41] The Town had in place safety policies that were inadequate. There was a lack of diligence in dealing with the issue. The lack of proper policies and the lack of a culture that promoted workplace safety directly contributed to this incident. There may be situations where accidents take place and perhaps, had the proper procedures been used, they would not have. Here, there is more than a mere probability, that had the appropriate legally required processes been used, this would not have happened.
[42] What was missing was not adherence to a complex regime or a tangled web of highly technical regulations. What was missed here, was simple and clear. The regulation reflects common sense safety precautions.
[43] The main cause of the incident here, was identified as the cave in of one of the vertical walls on the trench. The trench was about 11 feet 2 inches deep and 7 feet 5 inches wide. To comply with the regulations, the trench should have been 17-18 feet wide, at a minimum. No effort had been made to shore up the trench, to brace it, or to use a trench cage. This was not a situation where the breach was close or technical. It was clearly and singularly unsafe.
[44] There were two ladders on the sight. Neither of them was in the trench because the workers felt that it was crowded.
[45] The employee’s with direct supervisory responsibilities were not on the site. The hazard assessment forms for October 25th and October 26th, 2006 were not reviewed by a supervisor until the next day.
[46] The Town’s Safety Committee identified the root causes of the accident as improper sloping of the trench, no trench box on the site, lack of training, hazards not being properly identified, hazard assessment forms not being completed, and no job procedure for non-routine trench sites. The Town has not pled guilty to offences involving each of those issues, but the broader context of a lack of concern for safety is relevant in the sentencing of the two charges for which guilty pleas have been entered.
[47] There is no suggestion in this case that corners were cut specifically to save money. This is not a case in which profits trumped human lives. It was not a callous calculation of how much risk can be taken to maximize the profit margin or to balance the budget.
[48] The circumstances of the offender are also relevant. The Town of New Glasgow itself, as the employer, is a municipal unit. As the order of government that prides itself on being closest to the people, a municipality should feel a loss of this kind, and its responsibility for it, most keenly. If any organization should hold the safety of its workers as a highest level of responsibility, it is a municipality, where the workforce is more often than not, drawn from those who are part of the community itself.
[49] Here, the Town has pled guilty at the earliest opportunity and accepted responsibility. The Town’s new Chief Administrative Officer has stated a commitment to making safety a priority and to making the Town a leader in occupational health and safety matters. That is commendable. The Town has not sidestepped responsibility. It has not offered explanations that all too often are put forward as excuses in disguise.
[50] The Town’s unreserved acceptance of responsibility in this matter is significant. That is the case, not only in terms of acknowledging its guilt, but in dealing with the issue of specific deterrence. The Town, not only as an abstract entity, but as a community of people, has been struck by this tragedy.
[51] The Town has drafted a Workplace Safety and Culture Commitment. It is directly in response to the incident that claimed the life of Michael Bonvie. Quite properly, it addresses first and foremost the human aspect of the tragedy. It states in the clearest terms, that the Town is taking responsibility to make sure that this kind of tragedy is not repeated. The document proposes an integrated Municipal Safety Policy. It would involve the development of a Safety Culture Implementation Plan. That would mean that New Glasgow would demonstrate safety leadership as a model among municipal units. It would promote community safety. It would develop best practice policies. There would be an integrated manual for all departments with minimum safety policies and benchmarks. The Town would establish consistent safety practices through all departments. It would commit to regular communication of safety information. The Town proposes a budget to support this change in the amount of $65,000.00.
[52] There is much in the document that addresses immediate needs for the Town of New Glasgow. That change is something that should, and must, be undertaken. To some extent those costs are appropriate to allocate toward sentencing. Yet, it is difficult not to be drawn toward the conclusion that these measures are things that should have happened some time ago. They are things that needed to have taken place before. They are not, in any way, “restitution”, but they are an effort to make things right as far as internal safety processes for the Town of New Glasgow are concerned. A sentence must take into account an element of that, but must also include an element that imposes on the Town, something more than what it should have been doing all along.
[53] There is something discomforting about the discussion of dollar amounts when it happens in the context of a person’s death. It could be properly said of any amount, that it does not come close to being enough. It does not measure the grief of a family and of a community. It most certainly does not reflect the value of Michael Bonvie’s life. That would be the case regardless of the amount involved.
[54] Any amount is at best, a symbolic statement, acknowledging that a wrong has been done. It must be large enough to serve as that stern and blunt warning. The amount must be significant enough that it cannot be considered a cost of doing business. The cost must go beyond simply accounting for what the Town should be spending on living up to its health and safety responsibilities.
[55] The fine should reflect the fact that money paid in the form of a fine is money being paid from one order of government to another.
[56] The amount must be a rational response and not an emotional expression of frustration. An extraordinarily high fine would potentially serve as an effective warning. It would also have an impact on the taxpayers who would share in the cost without having been in any way directly involved. One of the many sad ironies at play here, is the fact that Michael Bonvie’s family and friends may be among those who would share in the increased tax burden.
[57] The amount should reflect the amounts of penalties imposed in similar situations. Those cases provide some guidance without predetermining an amount.
[58] In JD Irving Ltd. (Kent Building Supplies) (Feb. 2, 2000), the company was guilty of failing to ensure that employees used fall protection devices in a lumber yard. An employee died. The fine imposed was $100,000.00, with a victim fine surcharge of $15,000.00 and $10,000.00 in advertising.
[59] In Crossley Carpet Mills (April 10, 2000), the employer failed to provide guarding to prevent an employee from becoming entangled in a machine. The employee died. A fine in the amount of $75,000.00 was imposed.
[60] In Medis Health and Pharmaceutical Services Inc. (Jan. 11, 1999), the employer failed to take every reasonable precaution to ensure that a forklift platform was operated by a trained and competent person. The total penalty was $75,000.00.
[61] There have been smaller penalties imposed in cases involving fatalities. For example, in Sagadore Cranes and Equipment (Feb. 1, 2001), the employer failed to provide necessary supervision and permitted a tractor trailer unit to be operated with a braking system that was not properly maintained. The total penalty was $52,000.00.
[62] The Nova Scotia Department of Transportation and Public Works (Jan.28, 2003) failed to take every reasonable precaution to provide information, instruction, training and supervision with respect to the dangers of trenches. It was fined $5,000.00 and a further $10,000.00 assigned for education.
[63] There is a broad range of penalties that have been imposed when fatalities have occurred. It is important to acknowledge, that in each case a worker died, leaving behind grieving family and friends. The amounts of the fines are not a reflection of the values placed on those lives by the courts involved.
[64] It is significant here, that safety was not compromised for profit. It is also significant though, that the employer is a public employer. It is a public employer in an area where workplace safety issues have taken a cruel toll. The breaches here were not merely isolated events. There was a lack of concern for safety in the workplace that manifested itself in the lack of proper workplace safety policies. This was not a mistake or a moment of inattention. A municipality, as a public employer, owes it to its citizens and its employees to remember the history of its own area and to reflect thoughtfully, carefully and practically on it.
[65] As a judge facing a grieving family, I am struck by a profound sense of helplessness. No sentence will deal with that grief in a way that reflects its depth and magnitude. The comments contained in the Victim Impact Statements in this case, are a glimpse into the private pain of one family. To the extent that April Law-Bonvie and her children are willing to allow their private words and expressions of grief to be used publicly, they have the potential to be a powerful statement about the incalculable costs of failing to place a premium on occupational health and safety. They may, in some way, provide a further monument to Michael Bonvie.
[66] The amounts set out below total approximately $110,000.00, with an additional amount for the victim fine surcharge. That reflects the range of sentences in other similar matters. It is sufficiently large that it will have an impact on this employer and others. It reflects the public nature of the defendant as a municipal unit, its level of responsibility and its readiness to accept responsibility both for what has happened and for the future safety of its employees.
1. The Town will pay a fine in the amount of $25,000.00. That will, to some extent, provide a level of compensation to the Crown for the cost of the investigation and prosecution of this matter. The Victim Fine Surcharge will apply. Payment will be made no later than June 30, 2008.
2. If agreed, by the NS Safety Council, the Town will become a $5,000.00 Gold Sponsor at that organization’s annual conference and make a presentation there specifically on how safety standards were allowed to deteriorate, how this incident happened and how the Town is responding. The content of the presentation will be as agreed between the Town and the Nova Scotia Department of Environment and Labour.
3. If agreed by the Union of Nova Scotia Municipalities, the Town will sponsor a Spring Workshop and Fall Conference at a total estimated cost of $10,000.00. A presentation will be made addressing how safety standards were allowed to deteriorate, how this incident happened and how the Town is responding. The content of the presentation will be as agreed between the Town and the Nova Scotia Department of Environment and Labour.
4. The Town will pay for four quarterly audits of its safety programs. The audits are to be conducted by an independent safety consultant mutually agreed between the Town and the Nova Scotia Department of Labour. The audits are to be completed no later than June 1, 2009. The approximate cost of the safety audits are $5000.00.
5. The Town will develop an integrated safety manual and support material, including minimum safety policies for all departments within the Town. That safety manual and the associated policies will be shared with the Union of Nova Scotia Municipalities and copies will be provided to all municipal units within Nova Scotia. The total cost is estimated to be $35,000.00.
6. The Town will undertake health and safety training for all Town staff in a manner approved by the Nova Scotia Department of Environment and Labour. The total cost is estimated to be $15,000.00.
7. The Town will undertake a public information campaign dealing directly with the impact of workplace safety on families. With the approval of April Law-Bonvie, and her daughters, Madison Bonvie and Bryden Bonvie, the materials used will include the words and art work already provided by them or to be provided by them. The content of the campaign and the manner in which it is undertaken, will be subject to the approval of April Law-Bonvie and the Nova Scotia Department of Environment and Labour. The purpose of the campaign is not to detract from or to duplicate the public information efforts already being made by the Department. The total cost of the campaign will be $15,000.00.
8. The Court will retain jurisdiction to deal with the implementation of the sentence, and a further status date will be set.
Judge Jamie S. Campbell
Judge of the Provincial Court