Safety Codes Council 2017 Conference and AGM Presented by: Michael S. Solowan Partner 1
R v Williams Engineering Canada Inc. Alberta Provincial Court, 2014 Rocky Mountain Court Building in Calgary 2
Recap and brief update If you recall, at last year s presentation we looked at the R v Williams Engineering case, which involved a contract for repair of a parkade between an owner and a consultant There were issues with construction resulting in alleged contraventions of the Alberta Building Code 3
Recap and brief update As a result, the engineering company was charged under the Safety Codes Act as the party responsible for the construction The engineering firm was convicted of several counts at the trial level, however all the convictions were overturned by Alberta s Court of Queen s Bench 4
Recap and brief update The Court of Appeal subsequently allowed Leave to Appeal on the grounds that the interpretation of what constitutes an unsafe condition was of sufficient importance We can now inform that the appeal is set to be heard on June 15, 2017. Stay tuned for an update at next year s AGM 5
Safety Codes A Legal Update and Primer on Criminal Liability 6
The importance of knowledge, enforcement and execution A failure to be aware of, enforce and execute safety code requirements can not only be fatal, but can also lead to severe consequences, including criminal prosecution
Alberta Example: Safe storage of temporary heat With the cold, long winters in Alberta, the use of propane for temporary heat is prevalent, especially in residential construction projects
Safe storage of temporary heat Over the past several years, we have been informed by several of our partners and stakeholders that builders at residential construction sites are frequently not in compliance with the requirements for safe storage of temporary propane heat
Safe storage of temporary heat This culminated in 2013, when an explosion at a home under construction in Fort Saskatchewan left one man dead and two others badly injured Reports indicated that the explosion was likely caused by either a gas or propane leak
Safe storage of temporary heat Upon entering the home, two local brothers, who were plumbers, smelled a strong scent of propane Shortly after, and despite believing they had turned off the valve to solve the problem, the brothers heard a ticking sound, followed by an explosion
Safe storage of temporary heat In 2014, Alberta Municipal Affairs provided a grant to the Safety Codes Council to a create a program addressing the need to follow safety requirements for safe storage of temporary propane heat on construction sites
Safe storage of temporary heat The campaign includes: An instructional video; A detailed pamphlet; and Quick reference cards More details can be found of the Safety Codes Council s website
Safe storage of temporary heat It is important to recall that the safe use and storage of propane is governed by: The Natural Gas and Propane Installation Code; The Propane Storage and Handling Code; and Any additional requirements from Occupational Health & Safety, the Workers Compensation Board and various insurance companies
Safe storage of temporary heat Requirements for safe storage of propane are numerous. Some key examples include: All equipment must be approved and certified; Unconnected cylinders must be upright, secured and stored in a well-ventilated area; Tanks should not be used if past examination date, or if they are dented, rusted or damaged; New connections must be done by a licensed gas-fitter, and must be leak-tested prior to use; using the smell test for odour is not an acceptable test
Safety Code Violations and Criminal Consequences While we should all generally be aware that Safety Code violations can lead to fines and penalties under the Safety Codes Act, did you know that some Courts have recently relied on Safety Code violations to support serious criminal charges under Canada s Criminal Code?
Safety Code Violations and Criminal Consequences To give you an idea of the severity, the Courts have recently, in the context of safety code violations, considered the applicability of offences such as: Manslaughter; and Criminal Negligence causing death.
R v Fournier Quebec Superior Court, 2016 18
The Facts A construction worker was killed on April 3, 2012 when the walls of a trench that had been dug to replace a sewer line collapsed The Owner of the excavation company, who was responsible for the work, was working with the construction worker 19
The Charges The Owner was originally charged with criminal negligence, but at the Crown s request, a charge of manslaughter was added pursuant to section 222(5) of the Criminal Code 20
The Charges Canada s Criminal Code defines manslaughter (in this context) as being when an individual causes the death of a human being, by means of an unlawful act 21
The Charges So what does that above language mean? Generally, to commit murder, there needs to be an intent to cause someone s death Of course, in most cases involving construction sites, a supervisor or site owner will not intend to cause the death of their workers 22
The Charges The lack of intent to cause death is where manslaughter comes in. When someone commits an unlawful act, and an individual dies as a result of that unlawful act, manslaughter may be the result 23
The Charges: Manslaughter Example One possible example of manslaughter is impaired driving where someone is killed. While an impaired driver usually does not intend to kill anyone, because they are committing an unlawful act, they can still be charged for manslaughter in the death 24
The Charges In Fournier, the unlawful act in question was a violation of Article 3.15.3 of Quebec s Safety Code for the construction industry This provision requires an employer to ensure the walls of an excavation are firmly sealed and shored 25
The Charges Also relevant were requirements under the Safety code for the construction industry that required employers to take necessary steps to ensure the method of work is safe, and to adequately train and supervise workers 26
The Challenge The Owner challenged the validity of the charge of manslaughter. Among other things, he argued that a provincial safety code violation could not form the basis for an unlawful act manslaughter 27
The Challenge The Owner argued that a Safety Codes violation was inappropriate for a charge of manslaughter He argued this reduced the level of intent or fault required, and raised a regulatory offence to the level of a criminal offence with the possibility of life imprisonment as a punishment 28
The Challenge The Crown argued that the term unlawful act only requires the act to be illegal or unlawful, and not necessarily criminal. As such, a safety code violation could apply 29
The Decision The Court eventually held that, subject to a few conditions, a charge of manslaughter could be based on a strict liability offence in the area of occupational health and safety 30
The Decision The Court held that because a safety code violation was not a full means rea offence (meaning intent was not required to find guilt), the unlawful act under the safety code must be objectively dangerous and there must be a marked departure from what would be reasonable 31
The Test The Court suggested the following threepart test: The Safety Code offence must constitute an objectively dangerous act; The conduct in question must be a marked departure from what is reasonable in the circumstances; and A reasonable personal should or would have foreseen the risk the conduct would create 32
The Test Applied to the Facts The Court found that the trench made Article 3.15.3 of Safety code for the construction industry applicable It found the trench walls had not been shored and that the embankments were placed too close to the wall of the trench 33
The Test Applied to the Facts The Court found that the unlawful act (the Owner s failure to ensure the walls of the excavation were properly secured) contributed to the worker s death The Court also found that this act was objectively dangerous, and that a reasonable person would have been able to see the risk of a collapse 34
Key Comments by the Court The Court held that the legislation related to Occupational Health and Safety was designed to ensure safety on construction sites. A failure to properly shore and secure the walls was a clear contravention of Article 3.15.3 35
Key Comments by the Court In coming to its decision, the Court reviewed academic commentary that suggested we can properly ensure the highest standards of protection and safety by not allowing immunity from working practices that cause death to employees 36
Key Comments by the Court At the end of the day, the Court did not rule on whether the Owner was guilty of manslaughter. This case was limited to determining that a safety code violation could in fact be the basis for a criminal manslaughter charge. 37
What this means for you The Court s decision in Fournier should be noted by employees, managers, owners and safety code professionals alike. As the Court suggested, the importance of health and safety legislation cannot be understated. It exists to protect workers, and its requirements are much more than suggestions. 38
What this means for you Everyone needs to be responsible for workplace safety and ensuring workplace safety requirements are met 39
What this means for you Whether we are dealing with propane or excavations, not only is the health and safety of workers at risk, but Fournier suggests a growing risk of criminal prosecution 40
What this means for you The decision in Fournier suggests that if an owner or manager violates a safety code requirement and someone is killed or injured, they may be at risk of criminal prosecution for some very serious offences 41
What this means for you While Fournier suggests that the conduct must be a marked departure from what is reasonable, it seems clear from Fournier that not following safety requirements when there is a predictable risk of death or injury will constitute the necessary departure 42
What this means for you As an owner or manager, you have to be aware of and take the relevant safety code legislation seriously. You don t want to wind up facing criminal charges with the maximum penalty being life in prison 43
What this means for you As a safety codes officer or professional, this case reiterates the need to notice, point out and take action on safety code violations 44
R v Kazenelson Ontario Superior Court, 2015 2737 Kipling Ave in Toronto 45
The Facts This case involves a highlypublicized incident in Toronto in which four workers were killed and a fifth was badly injured It is yet another example where a health and safety code violation was key to a criminal charge 46
The Facts The incident occurred when a swing stage collapsed sending five workers falling approximately thirteen storeys Of the six workers on the swing stage, there were only two life lines available for the workers 47
The Facts In this case, the project was behind schedule and there was a $50,000 bonus riding on the ability to complete the work by a certain date The project manager was not paid hourly and was instead entitled to a share of the profits 48
The Facts The project manager had previously attended courses on suspended access equipment. These stressed the need for a fall arrest system, and stressed that all suspended equipment must be regularly inspected for safety In fact, course participants would fail if they did not tie-in prior to entering onto a swing stage 49
The Facts In this case, there was evidence that a Construction Health and Safety Inspector, had previously attended and issued a Stop Work Order after noticing a swing stage being improperly used The problems were remedied, however, and the Stop Order was removed 50
The Facts There was also evidence that the swing stage, which had been made custom for this job, had not been load tested by an engineer and did not have capacity labels attached 51
The Charges The project manager was charged with four counts of criminal negligence causing death, and one count of criminal negligence causing bodily harm 52
The Charges Section 217.1 of the Criminal Code creates a legal duty on anyone who has the authority to direct how another person does work. It creates a duty to take reasonable steps to prevent harm to that person (or any others) arising from the work 53
The Charges Section 219 of the Criminal Code, meanwhile, makes it an offence for anyone who shows wanton or reckless disregard for the lives or safety of other persons when omitting to do anything that it is his duty to do. 54
The Decision In this case, it was clear that the project manager had the ability to direct how his workers completed their job. He thus had a duty to take reasonable steps to protect his workers safety. 55
The Decision In determining what was reasonable, the Court looked to the Occupational Health and Safety Act and its regulations for guidance. The Court noted that Section 27 of the Act required a supervisor to ensure workers used protective devices as required by the Act, and to advise them of any dangers. 56
The Decision The Court noted that the Construction Regulation under the OHSA had details about fall arrest systems and when they are required. It required a fall arrest system when there was risk of a fall of more than three metres 57
The Decision The Court explained that it was clear that the project manager had violated his duty under the Occupational Health and Safety Act and its Construction Regulation by not taking clear steps to ensure there were enough lifelines for his workers 58
The Decision Based on this, the Court considered whether this safety legislation breach could result in a breach of the duty found in the Criminal Code The Court held that while a breach of a safety codes does not automatically result in a finding of criminal negligence, it certainly provides assistance 59
Key Comments by the Court It was key for the Court s decision that health and safety regulations are aimed at ensuring the health and safety of workers in the workplace. Considered as a whole, the project manager s actions and breach of the regulations supported a finding he had also breached his duty under the Criminal Code 60
Key Comments by the Court The Court further explained that the breach of health and safety regulations, as well as industry standards and Construction Safety Association standards, was reckless, amounting to a wanton disregard for the safety of workers 61
Key Comments by the Court In finding the project manager guilty on all counts, the Court was clear that the defence s argument that the workers were responsible for their own safety was contrary to the very core of health and safety legislation and the Criminal Code 62
What this means for you This case provides further motivation and reason to ensure safety code legislation is being followed. The law imposes duties on those individuals responsible for the work of others, and a failure to fulfill those duties can lead to severe criminal consequences 63
What this means for you Keep in mind that whether or not safety legislation was followed can guide the Court in determining whether a criminal duty was breached 64
R v Kazenelson Ontario Superior Court, 2016 2737 Kipling Ave in Toronto 65
The Sentencing In this case, the Court noted that the project manager had no criminal record and had worked in the industry for many years. He also had three children and was a good father who provided for his family as well as his mother He was also remorseful and showed sorrow for the loss 66
The Sentencing Despite the project manager s good character and the low chance he would reoffend, the Court held imprisonment was necessary to deter other people with authority over workers in dangerous situations from breaching their duties to those workers 67
The Sentencing The project manager was accordingly sentenced to 3.5 years in prison for each count, however the sentences were to be served concurrently. 68
The Sentencing Also note that the owner of the construction company was found guilty of four offences under the OHSA and fined $90,000, while the manufacturer of the swing stage was found guilty of two offences and fined $50,000 69
QUESTIONS? Michael S. Solowan 780-497-4893 msolowan@brownleelaw.com 70