Transcript Criminal Liability for Occupational Health & Safety: Bill

Criminal Liability for OHS
Violations
A Review of 10 Years of Bill C-45
Cases
Presented by: Adrian Miedema, Dentons Canada LLP
Bongarde Webinar, April 8, 2015
Two Types of Safety Offences
• Provincial
• Criminal
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Two Types of Safety Offences
• Provincial: prosecuted by provincial ministry of labour / workplace safety
agency
• Criminal: prosecuted by police / criminal prosecutors
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Bill C-45 (amended Criminal Code, 2004)
217.1 “Everyone 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.”
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Bill C-45: Workplace Safety Duty
217.1 “Everyone 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.”
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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.
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Bill C-45 Cases
Domenico Fantini (Ontario, 2004)
• Fatality (trench collapse)
• Outcome: charges withdrawn (2005) - pleaded guilty to provincial OHSA
charges
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Bill C-45 Cases
Transpavé (Quebec, 2005)
• Fatality (crushed by heavy machinery)
• Outcome: Company pleaded guilty (2008) and was fined $110,000.00
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Bill C-45 Cases
Pasquale Scrocca (Ontario, 2006)
• Fatality (employee struck by a backhoe driven by Scrocca)
• Outcome: guilty (2010) – failed to adequately maintain brakes on
backhoe. Sentenced to two years less a day.
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Bill C-45 Cases
Simon Gagné and Steve Lemieux (Quebec, 2006)
• Fatality and 3 injuries (collision of locomotive and track maintenance
vehicle)
• Outcome: not guilty (2010)
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Bill C-45 Cases
Karl Lilgert (Queen of the North case) (B.C., 2006)
• Fatality (two passengers lost and presumed drowned)
• Ferry’s navigation officer charged in 2010
• Outcome: guilty (2013; upheld on appeal, 2014)
• Sentenced to 4 years and a prohibition from operating a vessel for 10
years
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Bill C-45 Cases
Mark Hritchuk (Quebec, 2007)
• Automotive garage supervisor
• Employee caught on fire
• Outcome: pleaded guilty (2012)
• Received absolute discharge
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Bill C-45 Cases
Metron Construction Corporation (Christmas Eve
Fatalities) (Ontario, 2009)
• Four deaths (swing stage scaffolding collapsed)
• Metron Construction, director and supervisor charged
• Outcome: Metron pleaded guilty, fined $750,000.00 (increased from
$200,000.00 on appeal)
• Director, Joel Swartz, pleaded guilty to 4 OHSA charges and was fined
$90,000.00 plus 25% Victim Fine Surcharge
• Supervisor, Vadim Kazenelson criminally charged, committed for trial
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Bill C-45 Cases
Millennium Crane Rentals Limited (Ontario, 2009)
• Fatality (crane collapsed)
• Company, crane owner and crane operator charged
• Outcome: criminal charges withdrawn
• Company convicted under Ontario OHSA of failing to ensure that the
crane was maintained in a condition that would not endanger a worker.
Fined $70,000.00 plus Victim Fine Surcharge
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Bill C-45 Cases
Lyle Hewer fatality – Weyerhaeuser (B.C., 2004)
• Fatality (sawmill)
• Union initiated private criminal prosecution
• Criminal Justice Branch took over prosecution
• Outcome: charges stayed (2011)
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Bill C-45 Cases
Diane Peck (Ontario, 2011)
• Fatality (death of a nursing home resident)
• Personal care worker charged
• Outcome: charges withdrawn
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Two Immigration Cases
Lu (2011) and Ulybin (2013)
• Sought permanent residency in Canada
• Criminal judgment from court in Taiwan and Spain respectively:
• negligently killed another by neglecting to exercise the degree of care required
by such occupation
• gross negligence manslaughter and offence related to the rights of workers
because of his responsibility for a workplace accident
• Outcome: applications for permanent resident status rejected because
committed an “equivalent Criminal Code offence”
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Summary
• Bill C-45 charges still rare
• Only 10 prosecutions in 10 years
• Only 5 convictions
• Versus 780 convictions under Ontario OHSA in 2013/14 alone
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Summary
• 6 individuals, 4 corporations charged
• Individuals:
• 1 withdrawn
• 1 acquittal
• 3 convictions
• 1 ongoing
• Corporations:
• 2 withdrawn
• 2 convictions
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Summary
• 3 provinces:
• Ontario: 4
• Quebec: 4
• B.C.: 2
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Summary
• 9 of 10 involved fatality
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Summary
• Increasing public pressure for charges
• Increasing union pressure for charges
• Unions may initiate private prosecution
• Significant media risk
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Why so few Bill C-45 charges?
• Police defer to provincial OHS investigators
• Police not comfortable / skilled prosecuting offences arising out of
workplace?
• Very difficult to prove that supervisor showed “wanton or reckless
disregard for the lives or safety of other persons”
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Risk Management – Bill C-45
• Provincial OHS officers and police may co-operate
• Provincial OHS officers have authority to compel statements and
production of documents
• Treat provincial and OHS investigations separately
• If provincial OHS investigators and police both investigating, put plan in
place for managing criminal risk
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Keys to Avoiding Bill C-45 Charges
1. Regularly identify and assess hazards
2. Deal immediately with identified hazards
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Questions?
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Thank you
Adrian Miedema
(416) 863-4678
[email protected]
Dentons Canada LLP
77 King Street West
Suite 400
Toronto, Ontario M5K 0A1
Canada
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