Monday, September 16, 2013

Have there been any Criminal Code convictions for health and safety violations?

Two events separated by 17 years came to mind when I was asked the above question recently.  The two events may seem unrelated: 26 miners killed in a 1992 Westray mine explosion in Nova Scotia and four construction workers falling to their death on Christmas Eve 2009 in Toronto.  Connecting them is Bill C-45 amendments to the Criminal Code of Canada passed in 2004.

The investigation into WestRay revealed the limits of sanctions the law would allow.  The commission of inquiry found that the explosion and resulting deaths were predictable.  The operation put economic considerations ahead of worker safety.  Commissioner K. Peter Richard concluded the story leading up to the explosion was

“…of incompetence, of mismanagement, of bureaucratic bungling, of deceit, of ruthlessness, of cover-up, of apathy, of expediency, and of cynical indifference.”
Despite the strength of this finding, no one was found criminally responsible.

In response to the significant public outrage, Bill C-45 was introduced and eventually passed into law amending Canada’s Criminal Code.  The main amendment makes a clear statement.  Section 217 now reads

Duty of persons undertaking acts217. Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life.

Duty of persons directing work217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.

Since these sections became law, I am aware of only two applications of this new section.  The first was in Quebec and is known as Transpave where the employer plead guilty and a fine $100.000 was imposed.  The case involved a young worker being killed by a malfunctioning machine.  The employer knew the machine malfunctioned but did not take it out of service or properly train the worker in appropriate procedures. The employer was remorseful and invested heavily in safety measures to ensure a similar event would never happen. 

Then, in 2009, six construction workers were on a swing stage at the 14th floor.  The usual number of workers on the swing stage was just 2.  There were only two lifelines and only one was properly engaged.  Two workers survived but one was severely and permanently injured; four were killed. The employer, Metron Construction Corporation, plead guilty and was fined $200,000.  The Crown appealed and the Ontario Court of Appeal raised that fine to $ 750,000.  The OCA ruling is available on line.  As of this writing, the ruling has not been appealed further. 

We now have two cases testing the Criminal Code amendments flowing from Westray.  Has a company official been sentenced to prison for criminal negligence?  No, not yet.  Will we see more cases?  Unfortunately, yes.  I say unfortunately because the cases so far involve completely avoidable deaths and, sadly, the potential for more deaths exist elsewhere.  On the other hand, perhaps the successful convictions will be a wake up call to manages, supervisors, directors, and owners to review their own practices or lack of safety practices.  At a minimum,  financial risk analysts will now have new data to consider when weighing the risks of failing to train, keep equipment in good repair and put the safety of workers first.  


Jess Toons said...

Hey there! Thanks for sharing this article, it has been a very interesting read. I've been meaning to get more involved with minneapolis workers compensation lawyers. I want to lean about as many of them as I can to get an idea of the system. I think it would really help my research paper.

Nichole Mercado said...

Attorneys from Johnson Injury Law Firm also agree, unfortunately there will be more cases of this in the future; for as long as the criminal code regarding healthy and safety violations within companies wouldn't be strictly implemented or elaborated, management wouldn't be on their toes to carry out needed actions.