Editor’s Note: Bill C-45, which came into force on March 31, 2004, amended the Criminal Code of Canada, in part as a response to the findings of the Westray mining disaster public inquiry. On May 9, 1992, 26 miners died after an explosion at the Westray coal mine in Plymouth, Nova Scotia. The Safety Mosaic has asked two lawyers, Patricia Elia of Elia Associates in Toronto and Kevin B. Coon of Baker & McKenzie in Toronto to comment on Bill C-45 and what this legislation means for employers. An automotive technician drops a trouble light that ignites a fuel spill. Another technician reacts quickly to extinguish the flames by grabbing the closest fire extinguisher which is water based and therefore incompatible with flammable liquids. The fuel is subsequently spread through the shop because gasoline floats on water causing an instantaneous escalation of the fire, engulfing the entire building in flames and causing millions of dollars of damage.
Coon: Bill C-45 amends the Criminal Code Of Canada to establish rules for attributing to organizations, including corporations, criminal liability for the acts of their representatives and to establish a legal duty for all persons directing work to take reasonable steps to ensure the safety of workers and the public. This is an expansion of the current responsibilities found under current Provincial legislation.
Ella: Bill C-45, which received Royal Assent on November 7, 2003 and came into effect on March 31, 2004, amended the Criminal Code of Canada, materially via section 217.1, to change the perception of workplace health and safety rules as "bureaucratic paraphernalia" by significantly expanding the scope of liability faced by employers, directors, officers, managers, employees, agents and contractors who exercise control over or have authority over a workplace. Other consequential amendments to the Code include the change in terminology from corporation to organization, which broadens the nature and scope of liability by focusing on the nature and quality of the association rather than the entity’s legal status.
Coon: The legislation changes the legal landscape in at least two dramatic ways: an organization can be criminally liable for the acts of its representatives regardless of actual knowledge and it intrudes into an area already occupied by the provinces - workplace health and safety.
It expands the responsibility that an employer or those that direct the work to ensure the safety of both workers and the public. The responsibility to the public is an expansion and an interesting issue. For example, let’s say in a fast food setting that food becomes contaminated and the public becomes sick. The result is that the company and all persons associated with the food preparation or storage could be charged. Another example would be the SARS issue. Various health care workers or hospitals could be charged for not taking reasonable steps to ensure health and safety to the public.
In addition to the substantial fines and jail time available under the Criminal Code, C-45 also gives judges the ability to order corporations or individuals to make restitution and to place corporations on probation. Undoubtedly this will lead to some very creative sentencing. This will undoubtedly lead to some very unexpected results. Another important consideration from the company’s perspective is the stigma of having been convicted of a criminal offence. Many companies are very protective of their brand image and such charges would be seen to damage this. In addition, groups that would use such adverse publicity for their own purpose - such as competitors, consumer boycotts, trade unions - will look to exploit the fact that criminal charges have been laid.
Ella: Health and safety violations in the workplace can now be criminally prosecuted - which is a dramatic change. Where an employer, its officers, directors, senior management, agent, contractor and even staff are found to have been criminally negligent, encouraged a breach or failed to take reasonable steps to prevent bodily harm to a person in respect of work or a task, he/she/it will now be exposed to criminal liability, possibly incarceration.
Bill C-45 was largely the result of the blatant disregard for safety by management at the Westray mine, which resulted in an explosion that killed 26 miners. Prior to the Westray disaster and these legislative changes, corporate entities were largely immune to criminal liability. This is no longer the case and the criminal justice system is now better equipped to prosecute and penalize unreasonable behaviour regarding workplace safety.
Coon: C-45 and OHSA do not conflict although they greatly overlap. Health and safety is within provincial jurisdiction and all provinces have legislation. C-45 is broader. It expands who can be held personally liable to "all persons" rather than the OHSA standard, which is supervisors, officers and directors. In addition, under the OHSA, the Ministry usually looks to charge those with a direct connection or responsibility for the alleged violation.
With the possibility of "all persons" you expand the scope to a broader range of individuals in the workplace who do not have direct responsibility, but have some involvement with the issue, such as human resource directors, environmental health and safety managers, and members of the joint health and safety committee. It could also include those from outside the organization, such as consultants, while OHSA is restricted to "employees." The reality is that it will make it harder for the provincial inspectors and the ministry to do their jobs under the OHSA as both the police and the Ministry will be elbowing each other when there is an accident as to who should be conducting the investigation. The police will take the view that they have the greater right to investigate and so there will be disputes between them as to who is leading the investigation. Because there is the risk of criminal charges, employers and companies will be less apt to give inspectors free reign in the workplace to remove documents, interview whomever they wish, interview employees without legal counsel, etc. Provincial inspectors will become increasingly frustrated as individuals and corporations increasingly rely on the protections afforded them under the Evidence Act and due process. The overlap will mean more work for lawyers as the competing issues get sorted out in the courts.
Ella: These new standards under the Criminal Code do not replace or override an employer’s obligations under the OHSA. This will be an area to watch as police enforcement and Ministry of Labour safety inspectors determine the best way to harmonize implementation of this legislation in light of their different statutory authorities and the different laws of evidence applicable at the provincial and federal levels.
"Representative" and "Senior Officer" cover broader categories of personnel than the "directing mind" concept under common law, which had limited corporate liability to the conduct of senior corporate officials with the authority to make policy.
Coon: Bill C-45 raises the potential penalties significantly against both corporations and individuals. Under OHSA the maximum fine for an individual is $25,000 and 12 months in jail. For the corporation, it is $500,000 per offence. Under the Criminal Code the Crown has the option to proceed by summary conviction, which carries a maximum fine of $100,000 or by indictable offence with an unlimited fine level and longer jail time.
It is very interesting that the concept of companies being put on probation or having to make restitution also exists.
Ella: An individual found guilty of an offence under the OHSA may, in addition to criminal liability, still be fined up to a maximum of $25,000 and/or sentenced up to one year in jail per offence. If a corporation is convicted under the OHSA, the maximum fine that may be imposed upon the corporation is $500,000.
Under the Criminal Code, there is no predetermination of potential fines for indictable offences. Conviction of criminal negligence causing death could also mean a penalty of life imprisonment under the Criminal Code.
Coon: They must have a good due diligence program, as they have always been required to have under OHSA. Now they must review it keeping in mind that there are broader responsibilities and obligations. Given the criminal sanctions and the broader protections not to self incriminate and the legal requirements of the collection and use of evidence, companies need to revisit their policy and practice around accident investigations. For example, who is involved in accident investigations, what and when company documents are disclosed to the Ministry and police, under what circumstances and to whom are witness statements to be provided, etc. They need to develop a schedule of responsibilities for health and safety throughout their organization.
Ella: The new provisions send a very serious and clear message to employers and their respective directors, officers, managers and anyone directing the performance of another’s work to ensure that there are adequate resources devoted to the development of safety policies and procedures, that such policies and procedures are actually developed, documented and implemented through training of employees to prevent a workplace injury and that such policies and procedures are systematically audited for implementation compliance.
Never has it been so important to show that an entity is taking all reasonable steps to prevent injury and is dedicating the necessary resources to prevent injury, including hiring such professionals as are necessary to help with development, implementation and compliance.
For further information on Bill C-45 visit the Department of Justice Canada’s website www.justice.gc.ca.
That you should avoid lifting objects near the floor or above your shoulders.
