The Brick fined $125,000 for safety violations
Martin David, 47, died after fall in darkened washroom
The Brick has been fined $125,000 for three safety violations in connection with the June 2020 death of employee Martin David, who fell and struck his head in a darkened washroom at its Halifax store.
“We often think about occupational hazards and safety in the context of business like the construction industry, manufacturing or mining,” Judge Elizabeth Buckle said Wednesday at the national furniture chain’s sentencing in Halifax provincial court.
“This case is a reminder that even businesses that do not expose workers to typical hazards have to guard against complacency.”
Buckle said the fine for The Brick had to be substantial enough to “meaningfully” accomplish the objectives of sentencing.
“It has to denounce the conduct, deter other companies from committing similar offences, promote a sense of responsibility in the offender and contribute to acknowledgement of the harm done to the victims and the community,” she said.
“It cannot be seen as simply a cost of doing business.”
David, a 47-year-old delivery driver, was found on the floor of a washroom at the company’s Bayers Lake store June 9, 2020, at about 9:45 a.m.
David had walked into the employees’ bathroom a few minutes earlier after suffering a fall while loading a delivery truck.
Another worker discovered David lying in front of the urinals. The washroom was in complete darkness because the lights in parts of the store were programmed to be off overnight until 10 a.m., when the store opened to the public.
David was unresponsive at first. He then vomited several times and struggled to form responses to questions.
When paramedics attended, David was heard telling them that his head hurt. He was transported to hospital, where he died two days later.
An autopsy revealed the father of four, who grew up in Upper Hammonds Plains but was living in Dartmouth, had died from blunt-force head trauma that resulted in cardiac arrest.
David’s father contacted the provincial Labour Department on June 11, 2020, to report his son had suffered a brain injury at his workplace.
Later that month, The Brick’s lighting contractor readjusted the system so that the lights in the washroom area were always on when workers were present.
An investigator with the Labour Department laid four Occupational Health and Safety Act charges against the company in November 2021, 17 months after David’s death.
The company stood trial last April, and the judge delivered the verdict in September.
Buckle found The Brick guilty of failing to ensure the bathroom was adequately illuminated and failing to ensure its policies for accident injury investigation and lighting were implemented.
She acquitted the company on the fourth charge: failing to notify the Labour Department of a workplace accident within 24 hours.
“The Brick honestly and reasonably believed that Mr. David’s condition was the result of illness, which did not trigger a duty to report,” Buckle said.
In December, the judge ruled that the Crown had failed to prove any of the violations caused David’s death. That finding meant the maximum penalty for each charge was $250,000, rather than $500,000.
SENTENCING RECOMMENDATIONS
Crown attorney Alex Keaveny argued at a sentencing hearing in January that the company’s blameworthiness was at the highest end for non-fatality incidents. He requested the company be fined $62,500 – 25 per cent of the maximum – for each offence, for a total of $187,500.
Defence lawyer Ron Pizzo said The Brick upgraded its lighting system after the mishap and has strengthened its occupational health and safety regime. Pizzo said the company’s failures were at the lower end of the scale and a fine in the range of $20,000 to $35,000 would satisfy the sentencing principles.
“I do not agree,” Buckle said of the defence recommendation. “A fine in that range for even one of these offences would not be within the range of sentences imposed in other cases, would not be proportionate and would not achieve deterrence. As a penalty for all three offences, it falls far short of achieving a proportionate sentence.”
She said the failures that resulted in the offences gave The Brick “some unquantified financial advantage.”
“I infer that the decision to change the lighting schedule was motivated by cost-cutting, and I accept that there was a general cost savings in not having proper education and training,” Buckle said.
She said it was also aggravating “that for a portion of each day, there was zero illumination in the washroom. The inadequate lighting in the washroom continued undetected for at least two months. The potential harm from the failure to have lighting in the washroom was very high.”
Managers had very little understanding about the company’s lighting and accident investigation policies, the judge said.
“The failure to ensure that the accident investigation policy was implemented contributed to pausing the investigation, to create a real risk that evidence was lost,” she said. “The failure to ensure that the lighting policy was implemented contributed to the substantive offence of failing to have lighting in the washroom but also created a list of other issues with lighting.”
Buckle noted that no one from the company called David’s family after he was taken to hospital. A supervisor tried to text David the next afternoon.
“Managers at The Brick had a moral obligation to try to contact him to see if he was OK,” she said. “Given what they knew about his condition, they should also have known that he might not be able to contact his family himself and should have notified his family of what happened.
“Mr. David did not come home on that night of June 9 and his family did not know where he was. The family was notified the next day by the hospital that Mr. David was there. If the Brick had notified them when Mr. David was taken to hospital, it is possible that they could have been there to comfort him and could have said goodbye to him.”
IMPACT ‘HEIGHTENED’
Buckle said the impact of this case on David’s family and community was “heightened” by the fact he was African Nova Scotian. In a victim impact statement, Laverne David, Martin’s mother, said she believed her family was treated differently because of anti-black racism and feared they would not receive justice.
“There is no evidence that the fact that Mr. David was African Nova Scotian contributed to The Brick’s failure to call him or his family, or that Mr. David’s race had any impact on the way the case was investigated, prosecuted or judged,” the judge said. “However, given the well-documented experiences of African Nova Scotians, Mrs. David’s perception is not unreasonable.”
The judge fined the company $55,000 for failing to ensure there was proper lighting in the washroom, $40,000 for failing to implement its accident investigation policy and $30,000 for failing to implement its lighting policy.
“The total resulting fine is $125,000,” Buckle said. “In my view, that is not harsh and excessive and cumulatively reflects the gravity of the whole of the offending conduct.”
The fine was accompanied by a mandatory 15 per cent victim fine surcharge of $18,750, for a total financial penalty of $143,750.
The company was also ordered to make a series of educational safety presentations.
PROSECUTOR PLEASED
Outside court, Keaveny said he was pleased with the decision overall.
“We would have liked a larger penalty, because we think the message needs to be as firm as possible, but the penalty imposed was still a substantial one and I hope it has the effect that it’s intended to have,” the prosecutor said.
“Judge Buckle highlighted a number of important facts here. One especially important for the Crown was that when looking at fines in older cases, inflation has to be factored in, because the penalties have to be in … real, current dollars.
“The Brick is a huge company worth billions of dollars. So, in some sense, there’s probably no fine that’s going to change their day-to-day operations, but hopefully this penalty is enough that it does send a message that the consequences are too expensive. Because ultimately, that’s what will lead to greater compliance.”
A vice-president with The Brick told the court in January that the company has taken the matter seriously and is “truly sorry” for the impact on the David family.
“Yes, they did apologize the last time it was in court … but why couldn’t d they do that before?” Marty David, Martin’s 73-year-old father, said after Wednesday’s hearing.
“It will be four years in June. We heard nothing from them, … never got a card from them. We never heard that Martin was in that hospital. … We were cheated. As a family, we lost everything. We lost our son, our only son.
“It’s hard. I’m glad it’s over, because now we can try to put the pieces together. We don’t have to look forward to another court date, to say, ‘what’s going to happen next?’
“I didn’t want to come here today. … Emotionally, it’s wrecking and it’s hard on our hearts. But I thank God that I did, because through him, he gave me the power and the strength to see this through.”