BILL C-45: HAS THE SLEEPING GIANT AWAKENED TO BECOME AN EMPLOYER'S WORST NIGHTMARE?

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1 BILL C-45: HAS THE SLEEPING GIANT AWAKENED TO BECOME AN EMPLOYER'S WORST NIGHTMARE? By: Norm Keith * and Anna Abbott ± Bill C-45 (also known as the "Westray Bill") amended the Criminal Code, on March 31, 2004 and, for the first time ever, imposed an occupational health and safety ("OHS") legal duty on individuals, organizations in Canadian criminal law. Bill C-45, among other changes, established a new crime of OHS Negligence and made numerous other changes to the Criminal Code. After a significant dormant period, there have recently been a number of charges of OHS Criminal Negligence laid against individuals and corporate employers across Canada. The most publicized being charges laid in connection with the deaths of four workers from Metron Construction who fell from a faulty swing stage on Christmas Eve Until recently, only two Bill C-45 prosecutions had been resolved in court. First, the prosecution of supervisor Domenic Fantini, in relation to a construction workplace fatality. The Fantini prosecution resulted in a plea bargain agreement where Fantini pleaded guilty to Occupational Health and Safety Act charges, and had his criminal negligence charge was withdrawn. Second, the Transpavé prosecution involved a worker fatality at a small Quebec employer. Transpavé pleaded guilty to one count of OHS criminal negligence. Until recently, there had not been a trial on the merits of a Bill C-45 prosecution. Now two cases that have proceeded to trial under the Bill C-45 amendments: Scrocca, and Gagné. These cases will be reviewed in this article. Further, there are a number of * Norm Keith, B.A., J.D., LL.M., CRSP, leader of the Occupational Health and Safety and Workers' Compensation and national practice group at Gowlings LLP ± Anna Abbott, B.A., LL.B, Associate in the Labour and Employment Group, Gowlings LLP

2 2 Bill C-45 cases pending before the courts in BC, Quebec and Ontario, including the Metron Construction, the "Christmas Eve" quadruple fatality case. Before reviewing the two recent cases, it is important to review the relevant and applicable sections of the Criminal Code. The relevant sections for the purposes of a prosecution for OHS criminal negligence are ss. 220, 221, 219, and Under the Criminal Code, the legal definition of the crime of criminal negligence is defined as follows: Criminal negligence 219. (1) Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. Definition of duty (2) For the purposes of this section, duty means a duty imposed by law. Section 221 establishes the offence of criminal negligence causing bodily harm: 221. Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. Section 220 creates the offence of criminal negligence causing death: 220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable; (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life. These two sections establish the offence of criminal negligence in law and prescribe the penalties to be imposed where there is a finding of guilt. For an individual a finding of

3 3 guilt could mean 10 years in prison for injury, life imprisonment or death, or a maximum $100,000 fine plus 10% victim fine surcharge. For an Organization, a finding of guilt will mean an unlimited fine as well as damage to its business reputation resulting from the stigma of having a criminal record. Section was introduced under Bill C-45. It established the new legal duty for individuals and organizations as follows: 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. Section 22.1 was also introduced under Bill C-45. It sets out the elements required to find an organization guilty of a negligence based offence under the Criminal Code In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if (a) acting within the scope of their authority (i) (ii) one of its representatives is a party to the offence, or two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and (b) the senior officer who is responsible for the aspect of the organization s activities that is relevant to the offence departs or the senior officers, collectively, depart markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence. Therefore, under s. 219 (1) of the Criminal Code, a person is criminally negligent in doing anything or omitting to do anything that it is his legal duty to do, thereby showing wanton or reckless disregard for the lives or safety of other persons. Section of the Code imposes a legal duty to take reasonable steps to prevent harm arising from

4 4 the work undertaken by the corporation. Sections 220 and 221 establish the offences of criminal negligence causing death or causing bodily harm, respectively. The application of these provisions to an individual is straight forward as the individual is the locus for the elements - the proof must relate to the acts and mental state of the individual. The application of the elements to an organization is much more difficult. Section 22.1 provides the requirements for imposing liability on an organization for negligence based offences. Unfortunately, for employers, there have been no decisions analyzing the complex formula for organization guilt that arises out of the Bill C-45 amendments. The only two cases that have resulted in judicial decisions, Scrocca and Gagné, involved individual defendants. Scrocca resulted in a conviction and Gagné resulted in the acquittal of two individual defendants. Unfortunately, organizations and their senior officers will have to continue to wait for guidance from the court with respect to their duties and responsibilities under these provisions. R. c. Scrocca 1, marks the first trial decision examining the OHS criminal negligence provisions under the Criminal Code. Mr. Pasquale Scrocca, a landscape contractor in Québec, was found guilty of criminal negligence causing death with respect to a workplace incident resulting in the death of his employee, Mr. Aniello Boccanfuso. Prior to this decision, no other OHS criminal negligence case had proceeded to trial. Both the Transpavé case involved a guilty plea on behalf of the Corporation, and the Fantini case resulted in a plea bargain where the criminal charges were withdrawn in favour of a guilty plea for occupational health and safety contraventions under the OHSA. The employee, in this case, was killed when a backhoe, driven by his employer, failed to brake and pinned him against a wall. At the time of the incident, the backhoe was being used to move soil as part of a landscaping job at a commercial building QCCQ 8218

5 5 The court heard evidence about the mechanical fitness of the backhoe from expert witnesses who examined the machinery and from Mr. Scrocca, himself. The machinery in question was purchased in 1976 and had not undergone any regular maintenance since that time. The mechanical inspection after the incident found that the machine had absolutely no braking capacity in the front two wheels, no brake fluid in the reservoir, and an all-over braking capacity of less than 30%. The mechanical inspection also uncovered 14 additional major issues with the machine including the fact that the horn, brake lights, parking brake, and brake pressure gauge were not functional. The defendant admitted that a certified mechanic had not inspected the backhoe for at least five years and that he had failed to check the brake fluid in the previous year because the reservoir cap was broken. The defendant advised the court that he did not contest the mechanical faults of the backhoe, but that he did not have the requisite mens rea, or intent, required to be found guilty of criminal negligence. The defendant argued that he was not aware of the braking issue because he had not witnessed any leaking fluid, nor did he notice reduced braking capacity in the time leading up to the accident. The defendant also argued that at the time of the accident, there were no regulations in place in the province of Québec requiring regularly scheduled maintenance for heavy equipment. The court held that the intentions of Mr. Scrocca had no place in the analysis. The court explained that in criminal negligence cases there does not have to be a positive intention for the result of the act. The court found that there was a clear breach of the duty of care imposed on an employer under s of the Code the duty to take reasonable steps to prevent bodily harm to a worker. As the owner of the vehicle, Mr. Scrocca had a duty to ensure that the vehicle was maintained in a safe condition. The backhoe had been used for 30 years with essentially no mechanical maintenance. The court found that in failing to maintain the vehicle, the defendant placed himself in a position where he could not be sure of its mechanical fitness. As a result, he would not know the risks associated with its use, which recklessly put the lives and safety of his workers in danger. The court held that the defendant s argument, that that machine was brought to a certified

6 6 mechanic when there was a major problem, was not sufficient to meet the duty. Furthermore, the court held that the defendant s reasons for his failure to perform regular maintenance on the backhoe, that is, that he did not observe any issues with the vehicle, was indefensible and unacceptable. a prudent person would make sure that the equipment was looked over at least annually and would not fail to check the brake fluid just because the valve was broken. After a joint submission from the Crown and the Defendant on sentence, the Court imposed a conditional sentence of imprisonment of two years less a day. The sentence will be served in the community with conditions, including a curfew. In R c. Gagné 2, Steve Lemieux and Simon Gagné, two ex-employees of Québec-Cartier (formerly Arcelor-Mittal), were acquitted of accusations of criminal negligence causing death and bodily harm. The Corporation was not charged. The judgment of Justice Michel Dionne of the Court of Quebec was rendered November 29th The charges followed a collision between a train and a maintenance vehicle in October, The accident caused the death of Denis Leclerc and injured three others. The accident occurred because the operators of the train and of the maintenance vehicle failed to communicate with each other, and failed to ensure that the necessary traffic permits were in place to ensure the safety of those working around train tracks. At the time of the accident, Steve Lemieux was the train operator, and Simon Gagné was the foreman. Justice Dionne held that the Crown failed to prove the charges beyond a reasonable doubt. According Justice Dionne, the two men were more guilty of errors of fact than of criminal negligence. The court held that the required mental element was not present in this case. Justice Dionne held that the events of October 13th 2006 were attributable to an error of fact that arose from a corporate culture of tolerance and deficient training, not wanton and reckless disregard for the lives and safety of a worker on behalf of the two individuals , QCCQ 12364

7 7 Although, the Gagné decision resulted in an acquittal, the court spoke harshly about the corporate culture that it felt was the root cause of the accident. Had the corporation been charged, the result may have been altogether different. These cases are the first trial decisions under the Bill C-45 and serve to remind employers, supervisors, officers and directors that the OHS criminal negligence provisions carry a real risk of accountability. Employers must be aware that neglect of OHS duties can lead to unlimited fines for the corporation and possible fines and jail time for individuals. The implications of Bill C-45 are widespread and affect all levels of an organization. Bill C-45 resulted in increased legal risk for individuals and organizations (from senior management to lead hand). Further, there is no availability of insurance for OHS criminal negligence penalties. There is an implied duty to develop a fulsome OHS management system under Bill C-45. Accident prevention and OHS legal compliance is very important for managing legal risk. Organizations must be proactive in assessing and managing workplace risk. Legislative audits that identify any gaps in legislative and regulatory compliance is one of the most important tools that organizations can use to help reduce their risk.