Court imposed stiff fine based on the seriousness of asbestos exposure; no employee suffered injury
The City of Winnipeg was charged with an offence under Manitoba’s Workplace Safety and Health Act for failing to establish a system to ensure that all of its workers were not exposed to asbestos, a designated material. The charge arose as a result of contractors being exposed to asbestos while repairing fallen tiles.
The asbestos had been originally installed in the mid-1970s to remedy a problem with excessive noise at a swimming pool. The ceiling of the pool was coated with an acoustic damping insulation material that contained asbestos. That material was covered and sealed by a substance to encapsulate the asbestos. A suspended tile ceiling was attached below the primary ceiling, anchored to the primary ceiling by eye hooks and wire.
Over time the anchors corroded and failed, causing the material containing the asbestos to crumble and fall onto the tiles of the suspending ceiling. The deterioration became evident when, in 1999, two tiles from the suspended ceiling fell into the middle of the swimming pool.
A contractor was hired to repair the ceiling and over the course of two days, the ceiling was repaired. In doing so, the workers engaged in the repairs were exposed to the asbestos.
The city had knowledge of the asbestos prior to the collapse of the tile ceiling. In 1997 an occupational hygienist employed by the city, Dave Fritz, examined the insulation at the pool and sent a memorandum to a safety technician with the Parks and Recreation Branch. The memorandum stated that, “Controls must be put in place before any work that could disturb the asbestos insulation is allowed to proceed.” Although this memorandum was circulated to the occupational hygiene coordinator and the supervisor of aquatic facilities, it was never acted upon.
The city failed to exercise due diligence by failing to establish a system that would safeguard against the exposure of workers to asbestos in this case.
The city pled guilty to the charge under the Workplace Safety and Health Act. The only issue remaining was that of sentencing. The act provided that for a first offence the maximum fine permitted was $150,000.
The Court considered a number of factors in determining the appropriate sentence. Although there was no evidence that any worker suffered injury by reason of the exposure to asbestos, the Court recognized that the injurious effect of airborne asbestos may not become evident for years and that serious damage to health may result. The city had no record of previous convictions under the act. Following disclosure of the breach, the city reported the facts to the provincial department and undertook remedial steps to ensure future compliance with the act.
However the city had no system in place to ensure compliance with the act respecting the presence of asbestos. There was no administrative mechanism in place to prevent the commencement of work until safety issues had been addressed. Those workers with direct responsibility had no understanding of the health hazard inherent in exposure to asbestos.
With respect to mitigation, the city admitted its responsibility by entering a plea of guilty and took immediate steps to correct and improve its system. These are indications of remorse. Although the city failed to exercise due diligence by failing to establish a system that would safeguard against the exposure of workers to asbestos in this case, it did not ignore the need for vigilance as evidenced by the clear warning and direction by the occupational hygienist.
The Court also considered the maximum penalty prescribed ($150,000), the gravity of the consequences (both actual and potential), the financial resources of the city, and the quantum of penalty which may operate as a deterrent and mitigating factors. The resources of the city are limited only by the political will to impose taxes. Because of the gravity of the consequences in this case, the Court considered the starting point to be at or near the maximum penalty. It then considered the mitigating factors and imposed a fine of $90,000.
For more information:
• R. v. Winnipeg (City), Manitoba Provincial Court, Aug. 10/01.
The asbestos had been originally installed in the mid-1970s to remedy a problem with excessive noise at a swimming pool. The ceiling of the pool was coated with an acoustic damping insulation material that contained asbestos. That material was covered and sealed by a substance to encapsulate the asbestos. A suspended tile ceiling was attached below the primary ceiling, anchored to the primary ceiling by eye hooks and wire.
Over time the anchors corroded and failed, causing the material containing the asbestos to crumble and fall onto the tiles of the suspending ceiling. The deterioration became evident when, in 1999, two tiles from the suspended ceiling fell into the middle of the swimming pool.
A contractor was hired to repair the ceiling and over the course of two days, the ceiling was repaired. In doing so, the workers engaged in the repairs were exposed to the asbestos.
The city had knowledge of the asbestos prior to the collapse of the tile ceiling. In 1997 an occupational hygienist employed by the city, Dave Fritz, examined the insulation at the pool and sent a memorandum to a safety technician with the Parks and Recreation Branch. The memorandum stated that, “Controls must be put in place before any work that could disturb the asbestos insulation is allowed to proceed.” Although this memorandum was circulated to the occupational hygiene coordinator and the supervisor of aquatic facilities, it was never acted upon.
The city failed to exercise due diligence by failing to establish a system that would safeguard against the exposure of workers to asbestos in this case.
The city pled guilty to the charge under the Workplace Safety and Health Act. The only issue remaining was that of sentencing. The act provided that for a first offence the maximum fine permitted was $150,000.
The Court considered a number of factors in determining the appropriate sentence. Although there was no evidence that any worker suffered injury by reason of the exposure to asbestos, the Court recognized that the injurious effect of airborne asbestos may not become evident for years and that serious damage to health may result. The city had no record of previous convictions under the act. Following disclosure of the breach, the city reported the facts to the provincial department and undertook remedial steps to ensure future compliance with the act.
However the city had no system in place to ensure compliance with the act respecting the presence of asbestos. There was no administrative mechanism in place to prevent the commencement of work until safety issues had been addressed. Those workers with direct responsibility had no understanding of the health hazard inherent in exposure to asbestos.
With respect to mitigation, the city admitted its responsibility by entering a plea of guilty and took immediate steps to correct and improve its system. These are indications of remorse. Although the city failed to exercise due diligence by failing to establish a system that would safeguard against the exposure of workers to asbestos in this case, it did not ignore the need for vigilance as evidenced by the clear warning and direction by the occupational hygienist.
The Court also considered the maximum penalty prescribed ($150,000), the gravity of the consequences (both actual and potential), the financial resources of the city, and the quantum of penalty which may operate as a deterrent and mitigating factors. The resources of the city are limited only by the political will to impose taxes. Because of the gravity of the consequences in this case, the Court considered the starting point to be at or near the maximum penalty. It then considered the mitigating factors and imposed a fine of $90,000.
For more information:
• R. v. Winnipeg (City), Manitoba Provincial Court, Aug. 10/01.
