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.
