Crown urges $375K fine against ThyssenKrupp for serious elevator injury

By Colin Perkel, The Canadian Press

TORONTO – A $375,000 fine should be imposed on one of the country’s largest elevator companies for wilfully breaching safety rules before an incident in which a man was hurt, an Ontario court heard Monday.

In accusing ThyssenKrupp Canada of gambling with public safety, the prosecution called the company’s behaviour “egregious,” and said it was only by luck no one was killed in the July 2009 incident.

The fine is needed to send a message both to ThyssenKrupp as well as to the industry at large, Crown lawyer Kelly Hart said.

ThyssenKrupp Canada — part of a multibillion-dollar multinational — was found guilty in November of four offences related to the incident in which an elevator in a west-end Toronto condominium plunged as a man was getting in, trapping his foot.

“An elevator that moves with its doors open is very dangerous,” Hart told Judge Mindy Avrich-Skapinker.

Evidence was that the company had failed to repair or replace a badly worn main drive sheave — the part that holds an elevator in place.

A route mechanic realized the problem, put in place an ineffective stop-gap measure, and submitted a requisition order to repair or replace the part. The property managers had also written the company to express concerns about the condition of the elevator.

However, the requisition either went missing or was ignored and ThyssenKrupp did nothing to address the situation, court heard.

“That document just went ‘poof!’ into the air,” Hart said, calling that an aggravating factor.

Defence lawyer Leanne Rapley countered that surveillance video showed evidence of “unsafe user behaviour.” She said the victim — with whom the company has settled a civil lawsuit — entered a full elevator, which may have already begun to drop, at the “very last minute.”

Rapley also blamed the “very experienced” mechanic, who still works for the company, for failing to shut down the lift, but noted no inspectors or the regulator, the Technical Standards and Safety Authority, had picked up on the problem either.

She could not explain what happened to the mechanic’s “mystery requisition” but said the company has taken steps to address communication issues.

The defence lawyer said the incident has already cost ThyssenKrupp — a “market leader” — more than $1 million in various costs, including some loss of business.

A fine of $50,000 for the first-time offender, which has about 18 per cent of Ontario’s elevator maintenance contracts and takes in about $250 million in annual revenues in the province, would be appropriate, Rapley said.

Avrich-Skapinker convicted ThyssenKrupp in November of four regulatory offences — but Crown and defence urged her to register convictions on only two counts for legal reasons.

Hart said the company had shown no remorse, and didn’t even mention the litigation to the parent company’s shareholders or that it faced a maximum $2 million in fines.

“It’s not even seen as a financial risk to them — nothing worth mentioning,” Hart said.

Hart urged Avrich-Skapinker to hammer home the message to ThyssenKrupp and other elevator companies that safety laws must be followed given the 57,400 devices operating in Ontario and the trust users must have in them.

In July last year, a Canadian Press investigation found widespread concerns about worsening elevator reliability and safety across Canada. Many observers blamed the situation on the handful of multinationals, including ThyssenKrupp, saying the companies have been in a race to the bottom in an effort to grab market share.

For example, firefighters in Ontario responded to 4,461 calls in 2015 to extricate people from elevators — more than a dozen a day — and double the number from 2001.

Rapley called the condo incident a “one-off” that happened as part of a $550-a-month contract and said the Crown’s proposed fine was “excessive.”

Avrich-Skapinker, who said even the relatively small number of elevator injuries that occur annually are “not nothing,” will release her decision Tuesday.

Note to readers: This is a corrected story. The headlines of an earlier version had an incorrect fine amount.

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