Canada: R. V. Procon Mining And Tunnelling Ltd., 2013 YKTC 21

R. V. PROCON MINING AND TUNNELLING LTD., 2013 YKTC 21

This decision of the Territorial Court of Yukon resulted in a $150,000 fine being issued to the operator of a mine pursuant to the Yukon Occupational Health and Safety Act, R.S.Y. 2002, c. 159 (Act) following the death of an employee. The same fine, which was the maximum penalty available under the legislation, was also imposed on the mine owner pursuant to similar charges.

Procon Mining and Tunnelling Ltd. (Procon) operated Wolverine Mine, an underground polymetal mine owned by Yukon Zinc Corp. (Yukon Zinc). In April 2010, William Fisher, a Procon employee, was killed when approximately 70 tonnes of rock fell from a wall. The rock fall was the fourth fall in six months and Mr. Fisher was the second person killed at the mine in less than a year. Investigations conducted after the incident revealed that there was essentially no ground support plan in place, despite the fact that a 2007 feasibility study commissioned by Yukon Zinc recommended that such a plan be developed due to the mine's particular susceptibility to ground failures. A ground control plan was also required by s. 15.06 of the Occupational Health and Safety Regulations, O.I.C. 2006/178.

In a related case, Yukon Zinc was charged under the Act for failing to ensure that the health and safety of workers was protected. Yukon Zinc entered a guilty plea and was fined $150,000, based on an agreed statement of facts and a joint submission on sentence.

Procon was also charged under the Act and regulations, and entered a guilty plea to the charge of failing to ensure, as far as was reasonably practicable, that the workplace under its control was safe and without risk to the health of the employees. While the Director sought another fine of $150,000, Procon contended that $100,000 would be sufficient, arguing that it was primarily the mine owner's responsibility to provide a ground support plan and to supervise its design and placement. Procon also relied on the fact that it alerted Yukon to the lack of a ground support plan two months before the fatal rock fall.

Procon's defence was rejected by the Judge, who found that Procon chose to put its employees in harm's way despite its knowledge that there was no oversight of ground support. The fact that Procon alerted Yukon Zinc to the lack of a ground support plan two months before Mr. Fisher's death did not change the fact that it knew of the shortcomings and still sent workers into the mine. Moreover, Procon had been at the mine for nearly a year before bringing the shortcomings to the owner's attention.

The maximum find was imposed on Procon, together with a victim surcharge of 15%.

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