Criminal Charges

It has been almost a year since Bill C-45 was passed by Canada’s Parliament, creating criminal liability for employers and others for workplace accidents. Professional consultants should sit up and take notice of these amendments. They expose not only clients to criminal prosecution, but also consultants themselves.

Over 10 years ago, the Westray mine disaster took the lives of 26 miners. A lengthy public inquiry determined that important portions of Nova Scotia’s occupational health and safety legislation had been ignored by Westray management and that this had contributed significantly to the disaster. Consequently, the inquiry recommended that Parliament consider adding a provision to the Criminal Code that would prohibit blatant, reckless disregard for the safety of employees in the workplace.

Parliament enacted Bill C-45 in March, 2004. Its centrepiece is the creation of a new legal duty: “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.”

The new legislation defines “everyone” to include not only individuals and corporate entities, but also unincorporated associations such as partnerships. It relies on the existing definition of bodily harm within the Criminal Code; namely, any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.

A breach of the workplace duty constitutes criminal negligence which, in the event it causes death or bodily harm, can be prosecuted as a breach of sections 220 or 221 of the Criminal Code. These are serious criminal offences. A corporation may face unlimited fines, probation and restitution (make whole) orders. Individual offenders face the possibility of not only fines and probation, but also very lengthy prison sentences: 10 years for criminal negligence causing bodily harm; a life sentence for causing death.

Exposure to such charges specifically includes a contractor as a representative, which, in law, includes consultants. If the representative’s action or inaction can be linked to the failure of the organization’s senior management, then the organization, the relevant individuals in management, and the representative, are all exposed to criminal prosecution.

From a consultant’s standpoint, there are two obvious concerns. First and most obviously, the individual consultant or firm management should be taking reasonable steps to ensure that its employees are safe in the workplace. Second, and as an adjunct of the first, consulting engineering firms should satisfy themselves that the client is acting reasonably to protect not only its own workers but also the consultant’s employees when they send them to a client’s workplace. The legislation is not restricted to accidents that happen in the consultant’s own workplace. So, for example, if a consultant sends an employee out to do construction site reviews on a building project but has reason to believe that the building owner or the construction firm has not met the standard of care demanded by the workplace safety legislation, then the consultant could be regarded by the courts as being just as culpable as the client for the employee’s injury or death.

The new criminal exposure drives home what has always been the case since provincial workplace safety legislation was enacted: employers must take reasonable care to ensure that they comply with safety legislation in the workplace. So long as you are doing everything that could be reasonably expected of you in the circumstances to comply, it is hard to conceive how you could be successfully prosecuted for a breach of the Criminal Code duty of care.

Reasonable care (or due diligence) is not a concept new to Canadian law. It is driven by circumstances, changing from workplace to workplace and dependent on the line of business, the number of processes and the environment in which the work is taking place. The following, although not exhaustive, have all been adopted as badges of reasonable care and due diligence:

* A written commitment by the organization’s board to workplace safety in compliance with workplace safety legislation.

* A written compliance system.

* Reasonable budget allocation and staffing to ensure compliance and training.

* Documented training and regular retraining of employees.

* Proper internal communication to ensure safety issues are identified and properly addressed.

* Internal compliance reviews.

* Spot inspections by the organization’s personnel.

* Meeting or surpassing safety standards specific to the industry.

One might legitimately question whether Parliament needed to enact the new workplace duty of care. Provincial workplace safety legislation has long provided for stiff penalties, including substantial fines and jail time for individual offenders. Moreover, existing Criminal Code provisions, such as criminal negligence causing bodily harm and wrongful act manslaughter, were probably elastic and portable enough to apply to those gross breaches of workplace safety legislation that led to serious injury or death. It is also questionable whether Canadian police services will believe that they are properly equipped to investigate workplace accidents.

The difference arising from Bill C-45, however, is that there is now a Criminal Code provision that specifically addresses instances of workplace injury. One workplace accident in York Region, north of Toronto, has already led to a charge. We can only assume that over time there will be more charges and prosecutions.

Bruce McMeekin is with Miller Thomson, LLP in Markham, Ont.