Losing the will to enforce: Death of Syncrude worker reveals an OHS regime that’s getting worse under the UCP

On April 8, 2024 Syncrude was fined $390,000 and pleaded guilty to failing to ensure the health and safety of a worker under the Occupational Health and Safety Act. Bradley Tynski, 35, who was constructing a berm for Syncrude at the Aurora mine near Fort McKay, drowned on June 26, 2021 when an excavator he was working on slid into water at the mine.  

Vincent McDermott at Fort McMurray Today reported in 2021 that Syncrude was accused of letting the worker use the excavator on a ramp with a slope that was too steep and of not restricting access to a ramp that led to the water body. 

“Those same guidelines also say risks facing traffic or the ground must be studied when ground conditions are unknown or surface cracks are discovered. A geotechnical engineer must approve those surveys before a safe access plan is completed. OHS alleges Syncrude did not follow this step, either,” reads the news report.

The $390,000 fine is on the higher end of what companies who are convicted in traumatic workplace fatalities usually receive. The maximum fine under the OHS act for a first offense is $500,000 per dead worker and the average payout for all companies convicted of killing a worker on their worksite over the past ten years is $266,566. That’s a total of $17.8 million for 68 fatalities with OHS convictions over the past ten years. 

Alberta’s average fine for negligently killing a worker is low when compared to other places, one expert told us.

“It’s low and it is low compared to other jurisdictions,” said Jared Matsunaga-Turnbull, the executive director of the Alberta Worker Health Centre. “In Europe, they’ve gone the other way: they’ve done the stick approach rather than just the carrot. There are huge fines and penalties and a track record of enforcing it.”

For instance, British Airways was fined £1.8 million pounds ($3.09 million CAD) in 2021 after a worker was crushed to death by a tug vehicle at Heathrow Airport. 

The highest penalty given to a corporation for a workplace fatality in the past ten years in Alberta was $488,750 to Sahib Contracting in Edmonton in 2017. Brian Frederick Tomyn, a day labourer who was also on AISH and was well known at the Bissell Centre, was killed after a trench he was working in collapsed on him. In a rare move Sukhwinder Nagra, the owner of Sahib Contracting, was sent to jail for four months for the OHS violations that led to Tomyn's death


Image from the OHS fatality report in Brian Frederic Tomyn's death. 

The lowest fine given to a corporation for a workplace fatality in the past ten years was $100,000 to Brayford Trucking in 2017 in Fort McMurray. The investigation notes that Brayford Trucking was a subcontractor to Suncor. Two workers were operating track hoe excavators on a berm of material that was sitting on a sheet of ice. One of the excavators broke through the ice and sank into the water below with the operator inside. The operator did not survive.

Image from the OHS fatality inquiry into the death of a Brayford Trucking employee who's excavator fell through the ice. 

“Creative sentencing”

When the Syncrude story broke, some commenters expressed their surprise that the penalty was not being paid to the victim’s next of kin, or to the government, but to several non-profit and academic institutions. This sort of arrangement, called ‘creative sentencing,’ is actually common for OHS judgments. 

Syncrude’s $390,000 fine will be going to the David and Joan Lynch School of Engineering Safety and Risk Management, the UAlberta Geotechnical Centre and the Alberta Municipal Health and Safety Association. The judgment directs that the funding be used to develop an employer best-practice guide and field-ready mobile app for trenching, excavation and adjacent work. 

Matsunaga-Turnbull was critical of the government’s decision to send the fines that way.

“It’s addressing something that should have been done anyway. It’s a legal requirement that you protect your workers. They’re trying to do restorative justice but without a robust process,” said Matsunaga-Turnbull. 

“I’m not saying that developing fact sheets or videos with these industry associations is bad but it doesn’t bring them back and does it stop future incidents? Where’s the accountability?”

The $390,000 Syncrude fine announcement also makes no mention of the victim surcharge, which is supposed to be 20 per cent of all fines. Details on how the victim surcharge works are not available and OHS officials stated that victim fine surcharges don’t apply to creative sentences. That statement contradicts numerous creative sentences where the victim fine surcharge was applied. At this point it seems as if the family of the dead worker did not receive a single cent of the $390,000 OHS fine levied against Syncrude. 

Suncor, which owns a controlling stake in Syncrude, is the second largest oil and gas company in Canada. In just the fourth quarter of 2023 alone Suncor’s net earnings were $2.82 billion. Suncor is not struggling in the present environment: it paid out $704 million in dividends to its shareholders, and bought back $375 million in shares, in the fourth quarter of 2023 alone. 

The death of this unnamed worker at a project majority owned by Suncor happened six months after the deaths of three workers in two separate incidents on Suncor sites in a short succession. On January 23, 2021, Suncor put out a statement with the headline “Reinforcing our commitment to safety.”

Image from Suncor.ca from a post on the follow-up being done by Suncor on the deaths of three workers in two separate incidents. Two months after this post the worker at Syncrude's Aurora mine would die, Suncor is the majority owner of Syncrude. 

“The construction and safety associations that receive the money from these creative sentences are mostly dominated by employers,” retired labour lawyer John Carpenter explained to us. 

“I’ve been pretty skeptical of what these creative sentences can accomplish. How do you test the efficacy of them? When you deal with big corporations a $250,000 fine is often just a drop in the bucket. They’ll likely spend more than that on legal fees on the incident.” 

But Alberta’s fines for negligently killing workers aren’t just lower than average—they’re also rare.

Only a small amount of traumatic workplace fatalities ever see an OHS conviction. Between 2017 and 2023 (the only years with publicly available data) there were 239 traumatic workplace fatalities. In that time only 54 employers were convicted for OHS violations leading to a worker’s death. 

There has also never been a criminal prosecution in Alberta of an employer who killed a worker under the Westray Law, a Criminal Code provision named after a deadly mining disaster in Nova Scotia in 1992. The Westray Law was cited in the complaint filed by Benito Quesada’s family to the RCMP after Quesada, a worker at the Cargill meat packing plant near High River, was killed by COVID-19. Conditions at the Cargill plant led to one of Canada’s worst COVID-19 outbreaks; at its height in May 2021, nearly half of the entire plant workforce had been infected. Quesada’s family made their complaint over three years ago and there have been no announcements from the RCMP since. 

“Losing the will to enforce”

But the death of this Syncrude worker is just the tip of the iceberg. When you start digging into data from government of Alberta annual general reports, it shows a steep decline in OHS tickets issued and OHS orders given under the UCP. This drop in OHS enforcement is happening despite the rate of inspections actually going up.  

Between 2016 and 2019, under the NDP, the average annual amount of OHS tickets given was 225. Between 2019 and 2023, under the UCP, the average annual amount of OHS tickets fell dramatically, to only 34 – a 153 per cent decrease. OHS officers can issue tickets to employers and workers for observed non-compliance with specific sections of OHS legislation. This can be for things like an employer failing to ensure that workers are using or wearing required equipment.

OHS officers can also issue compliance, stop-use, or stop-work orders instead of tickets, but the number of orders being issued dropped under the UCP as well.

Between 2016 and 2019 under the NDP the average annual amount of OHS orders given was 11,809. Between 2019 and 2023 under the UCP the average annual amount of OHS orders given out was 9984 – a 17 per cent decrease. 

Bob Barnetson, a professor of labour relations at Athabasca University analyzed the same data last year

“Overall, it looks like the government continues to lose the will and/or capacity to meaningfully enforce workplace safety rules under the UCP. Not surprisingly, the rate of injury has risen, likely because workplaces are more dangerous,” said Barnetson. 

Inquiries made the government of Alberta about the drop in OHS enforcement and why there was no victim surcharge on the Syncrude fine were not returned.

UPDATE: A government of Alberta media spokesperson got back to us after our deadline. Here was their explanation for why no victim fine surcharge was levied in the Brad Tynski case, a $390,000 creative sentence is not a fine. 

"A fine and a payment under a creative sentence order are separate penalties under the law, as is indicated on the web page you refer to. A fine is a monetary penalty paid to the Crown and is subject to the victim fine surcharge (VFS). A monetary payment under a creative sentence order is not a fine as it is not paid to the Crown. It is an amount paid to an organization or toward a project to improve or promote workplace health and safety. VFS can only be applied to a fine payable to the Crown. A judge may impose a sentence that includes both a fine payable to the Crown and a payment under a creative sentence. The fine payable to the Crown is subject to the VFS while the creative sentence payment is not."

There's more to come on this however as judges have been handing out OHS convictions that include the victim fine surcharge regularly but it does not appear that any victims or family members of victims in workplace fatalities have any way to access this money.

Here's their explanation on why enforcement dropped under the UCP.

"As for your question about enforcement activities, there was a noticeable increase in tickets and orders in 2018-19 from previous years. This was due to significant changes to OHS laws that came into effect in June 2018 and employers requiring time to comply with the changes. The decrease in orders and tickets between 2020 and 2022 was due to the COVID-19 pandemic. Many workplaces were closed during that time due to public health restrictions so there was less workplace activity. There were also fewer in-person OHS inspections of workplaces during that time for the same reason."

As you can see this statement doesn't refute the data that shows a considerable drop-off in enforcement under the UCP. And while it seems reasonable the explanation falls apart when you extend the analysis into the 2022-2023 year. In that time frame, allegedly after the COVID-19 pandemic, only 27 tickets were handed out, less than the two years prior at the height of the pandemic. You can check the data here (just to to the Tickets and penalties tab).