Skip to content

Occupational Health and Safety sentencing decision – Nova Scotia

By Sean Kelly & Tiegan Scott

Earlier this month, the Provincial Court of Nova Scotia issued its sentencing decision in R v The Brick Warehouse LP, 2024 NSPC 26, imposing a monetary penalty of $143,750 (i.e., based on fines totalling $125,000 and a victim surcharge of $18,750) coupled with an order for the employer to provide four educational presentations.  The sentencing follows a September 2023 conviction on a number of charges under the Occupational Health and Safety Act (the “OHSA”) and Regulations after a June 2020 fatality.

Key facts  

On June 9, 2020, a delivery driver for The Brick was found injured on the floor of a washroom in the employer’s store.  The lights, which were on a timer, had turned off and no switch was located inside or nearby.  Due to COVID-related changes in the store’s hours, the timer for the washroom had been adjusted and, as a result, employees ended up using the washroom in the dark or using flashlights on their phones.

The victim was found semi-conscious and immediately taken to hospital, where they died two days after the accident.  At trial, the Judge concluded that the victim sustained a fatal fall while he was in the washroom.

The employer did not inform the victim’s family that he had been taken to hospital and the family did not, in fact, learn of the workplace accident until 30 hours later.

The workplace accident was reported to the Department of Labour by the victim’s father, as opposed to the employer (as is required under the OHSA). Following an investigation, The Brick was charged under the OHSA.


At trial, Judge Buckle found the employer guilty of three offences under s. 74(1) of the OHSA, namely:

  • Failing to ensure the employer’s accident investigation policy was followed;
  • Failing to ensure there was adequate lighting in the washroom, as required by the Regulations; and
  • Failing to ensure the company’s lighting policy was implemented.

Causation was a material issue in the sentencing decision – specifically, whether there was proof beyond a reasonable doubt that that the darkness in the washroom contributed to the victim’s death in a non-trivial way, by either contributing to the fall or its consequences.

Judge Buckle concluded that, while the fatal injury was likely sustained inside the darkened washroom, the evidence did not establish that the darkness caused the victim’s fall.  While it was possible that he had slipped on an unseen hazard, it was equally possible that he had fainted, without warning.  Had the latter occurred, the lack of light would have been factually irrelevant to the fall.  Because factual causation was not established, Judge Buckle did not go on to assess legal causation.  Had causation (i.e., factual and legal) been established, the potential fines could have been $500,000, as opposed to $250,000, per offence.

The $125,000 fine is broken down as follows:

  • $55,000 for failing to provide adequate lighting in its washrooms, which was described as the most serious of the three offences as it created a significant risk of harm to employees and represented a “significant degree of negligence” in that there were no plans to prevent or detect the failure.
  • $40,000 for failing to implement its accident investigation policy;
  • $30,000 for failing to implement its lighting policies.

Because the charges relating to the failures to follow internal policies did not create an immediate risk to employee health and safety, these latter two were held to be, comparatively, less severe than the “main” offence of improperly lighting its washrooms and therefore justified a smaller fine.

Aggravating factors impacting the sentence included:

  • The employer’s breaches were motivated by saving money.
  • At some point during each day, there was zero light in the washrooms.
  • The risks associated with inadequate washroom lighting were very high (e.g., slipping, health, hygiene).
  • The employer’s accident investigation policies were not understood by relevant employees.
  • The improper investigation may have resulted in lost evidence.
  • The employer’s delays in notifying the victim’s family of the accident had devastating personal effects on the grieving family.
  • Public cost to the investigation and trial.

Key takeaways for employers

This case is a reminder that serious accidents can happen in any workplace. Employers whose workplaces are not inherently dangerous and do not expose workers to traditional hazards nevertheless have a positive duty to guard against complacency with respect to health and safety obligations.

While workplace fatalities in Nova Scotia are, fortunately, reported to be on the decline in recent years, the fact remains that accidents on the job involve tragic human consequences.  The resulting sentences for employers (and individuals) following a finding of culpability often involve (increasingly) significant fines as well as creative sentencing obligations.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour & Employment Group.

Click here to subscribe to Stewart McKelvey Thought Leadership. 



Search Archive


Let’s talk about batteries: Nova Scotia Power’s latest development in renewable energy

July 18, 2024

In conjunction with our upcoming sponsorship of the Halifax Chamber of Commerce luncheon, featuring the Minister of Energy and Natural Resources the Hon. Jonathan Wilkinson, we are pleased to present a Thought Leadership article highlighting…

Read More

“Sale” away: The SCC’s more flexible approach to exclusion clauses in contracts for the sale of goods

July 9, 2024

By Jennifer Taylor & Marina Luro A recent Supreme Court of Canada decision has clarified how to interpret exclusion clauses in sale of goods contracts. The Court in Earthco Soil Mixtures Inc. v Pine Valley…

Read More

Recent case re-confirms temporary ailment is not a disability

June 24, 2024

By Mark Tector and Tiegan A. Scott Decision On April 3, 2024, the Alberta Court of King’s Bench (“ABKB”) upheld a decision of the Chief of the Commissions and Tribunals (the “CCT Decision”), which held…

Read More

Compensation for expropriation: Fair, but not more than fair

June 17, 2024

By Erin Best, Stephen Penney, Robert Bradley, Megan Kieley1 and Elizabeth Fleet1 Expropriation is a live issue in Canadian courts. The Supreme Court of Canada’s decision to broaden the test for constructive expropriation in Annapolis…

Read More

Changes affecting federally regulated employers

June 10, 2024

By Killian McParland and Sophie Poulos There have been many changes in recent months affecting employers governed by federal labour and employment laws. In September 2024, Stewart McKelvey will be hosting a webinar to review…

Read More

Impending changes to Nova Scotia’s Workers’ Compensation Act – Gradual onset stress

June 4, 2024

By Mark Tector and Annie Gray What’s changing? Currently, workers’ compensation coverage in Nova Scotia applies to only a narrow subset of psychological injuries. Specifically, in Nova Scotia – as in all Atlantic Provinces –…

Read More

Appeal Courts uphold substantial costs awards for regulators

May 22, 2024

By Sean Kelly & Michiko Gartshore Professional regulators can incur substantial costs through discipline processes. These costs are often associated with investigations, hearings as well as committee member expenses and are an unfortunate by-product of…

Read More

Less than two weeks to go … Canada Supply Chain Transparency Reports are due May 31st

May 21, 2024

By Christine Pound, ICD.D., Twila Reid, ICD.D., Sarah Dever Letson, CIPP/C, Sheila Mecking, Hilary Newman, and Daniel Roth Introduction The first reports under the Fighting Against Forced Labour and Child Labour in Supply Chains Act (the…

Read More

Court upheld municipality’s refusal to disclose investigation report

May 1, 2024

By Sheila Mecking and Sarah Dever Letson A recent decision out of the Court of King’s Bench of New Brunswick,[1] upheld the Municipality of Tantramar’s decision to withhold a Workplace Assessment Report under section 20(1)…

Read More

Occupational Health and Safety sentencing decision – Nova Scotia

April 29, 2024

By Sean Kelly & Tiegan Scott Earlier this month, the Provincial Court of Nova Scotia issued its sentencing decision in R v The Brick Warehouse LP, 2024 NSPC 26, imposing a monetary penalty of $143,750 (i.e.,…

Read More

Search Archive

Scroll To Top