:: rawblogXport ::

:: Tuesday, November 09, 2004 ::

addressing corporate manslaughter in Canada:
Bill C-45 "The Westray Bill"

BILL C-45 (Royal Assent)
3. The Act is amended by adding the following after section 217:

Duty of persons directing work
217.1 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.
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Criminal Code takes tough line on worker safety
By Howard Levitt, Financial Post, Nov. 01, 2004
Lax employers will find themselves in court -- or worse

Now, when management falls short of taking steps the court considers appropriate to prevent workplace injuries -- and more than two deaths and untold injuries occur daily in Canadian workplaces -- executives can find themselves subject to imprisonment, parole and a criminal record.

In 1992, 26 men died in Nova Scotia's Westray Mine because of the oversight of the mine's executive and management. Some of the mine's executive knew of the potential dangers the miners faced, but safety was neither their top concern nor even a budgetary item. In the absence of legislation ascribing liability, no one was held accountable for so many preventable deaths and such inexcusable tragedy.

Prompted by the Westray Mine disaster, amendments to the criminal code were introduced and the protective corporate veil that had saved Westray management from criminal prosecution was lifted. Now any decision-makers who fail to ensure worker safety are subject to criminal conviction.

The law, passed earlier this year, covers large numbers of employees. It makes liable "every person who has the power to direct how a task is performed if they fail to take reasonable steps to prevent bodily harm."

If they fall short, they are subject to criminal negligence. The penalties are severe. From president to supervisor, anyone who directs another's activities can acquire a criminal record, face imprisonment, and live life subject to probation.

Corporations will also be penalized for those same acts or omissions, in numerous and onerous ways. With no upper limit to fines, million-dollar penalties may be imposed. Courts, which have no inherent managerial expertise, also are provided the power to dictate practices for the company's operations so as to reduce the likelihood of reoccurrence of the offence.

Public humiliation appears one goal of the Criminal Code amendments. Under this legislation, the employer can be forced to advertise to the public information as to the offence of which it was convicted, its sentence and the measures it took as result. The impact of advertisements admitting to criminal acts is the deterrent the government hopes will ensure that management places a higher priority on worker safety.

But before hamstringing the corporation, courts will scrutinize its behaviour. If the corporation enjoyed any advantage as result of the offence or if there was any planning or concealment, the sentences will be further increased. Conversely, they will be reduced if the corporation imposed its own penalty on the individual responsible for the offence, took measures to reduce the likelihood of a similar offence in the future, or provided restitution to the victim.

With more than 800,000 injuries and 800 deaths in the Canadian workplace each year, employees -- at many levels -- could now face criminal consequences.

I recommend the following steps to avoid liability:

- Identify those individuals who delegate, direct or supervise the work of others. Make them aware of all of their responsibilities and new potential criminal liability. Plan these meetings with experienced counsel.

- Consult with your employees on their perceptions of workplace risks and hazards. Ensure they are properly trained.

- Develop a written workplace safety program in consultation with the workplace health and safety committee. Take the recommendations of this committee seriously.

- Train workers before they start a new job or move to a different part of the workplace.

- Ensure workers are supervised by someone who is competent to ensure the work is done properly.

- Advise workers of all safety and health hazards.

- Ensure that workers use safety equipment and clothing.

- Establish and adhere to a reasonable timetable for inspection of the workplace.

- When sub-contractors are at the worksite, ensure they are aware of hazards and follow your safety measures.

- Don't tolerate worker violations of safety rules. Ensure sanctions are consistently enforced.

- Don't tolerate management being lax in their enforcement of safety. If they prove they cannot be trusted in that respect, remove them.

Howard A. Levitt is counsel to Lang Michener LLP. He is author of The Law of Dismissal in Canada and The Quick Reference to Employment Law, and editor-in-chief of The Dismissal and Employment Law Digest. He practises throughout Canada.

© National Post 2004

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Exposing workers to cigarette smoke could be a criminal offence
Physicians for a Smoke-Free Canada welcomed Parliament’s adoption of  Bill C-45, An Act to amend the Criminal Code (criminal liability of organizations), that now requires employers and managers to take “reasonable steps to prevent bodily harm” in the workplace. 

The new law, which received Royal Assent on November 7, 2003 adds the following new obligation to the Criminal Code in Section 217.1:

"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."

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OSH Answers: OH&S Legislation in Canada - Due Diligence
'Due diligence' is important as a legal defense for a person charged under occupational health and safety legislation. If charged, a defendant may be found not guilty if he or she can prove that due diligence was exercised. In other words, the defendant must be able to prove that all precautions, reasonable under the circumstances, were taken to protect the health and safety of workers.

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Bill C-45 – Codifying Criminal Liability
BILL C-45 IN A NUTSHELL

Extending Liability

The purpose of Bill C-45 is to establish criminal liability for a wide range of organizations and individuals who fail to take reasonable steps to prevent workplace accidents. Essentially, Bill C-45 will extend the application of the Code such that partnerships and trade unions could be included in the types of associations prosecuted for criminal offences.

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USWA - Fighting for Healthy and Safe Workplaces and a Clean Environment
The explosion at the Westray Mine in 1992, which killed 26 workers, exposed a larger and deeper problem – what happens when laws are not enforced and when corporate leadership does not act responsibly?

After considering all the evidence in a special Westray inquiry, Justice Peter Richard recommended that the federal government review the Criminal Code to address corporate killing. Steelworkers took up the challenge to establish that irresponsible corporate behaviour leading to death and bodily harm is criminal and should be punished as such.

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The Westray Story
Prelude to the Tragedy: History, Development, and Operation
The Explosion: An Analysis of Underground Conditions
The Regulators: Departmental and Ministerial Responsibility
The Aftermath: Rescue Efforts and the Inquiry

posted 7:42 AM :: reference link :: 0 comments ::

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