Corporate killing goes beyond execs

Managers, supervisors at risk for charges and fines

Stuart Rudner
When someone is badly injured or killed at work, public attention turns almost immediately to finding the responsible party. Typically, there are general notions of corporate responsibility, with people looking for either the organization, or perhaps its most senior executives, to be held accountable.

Changes to the Criminal Code have made it easier to lay charges against organizations and individuals if they fail to take reasonable steps to prevent bodily harm to others. These changes apply not only to the directing minds of the organization, but to just about everyone.

In 2004, the Criminal Code was amended by Bill C-45, An Act Amending the Criminal Liability of Corporations, also known as the corporate killing bill. This bill is also referred to as the Westray bill, as it was the result of a public inquiry into the disaster that took place at the Westray Mine in Nova Scotia where 26 miners were killed in 1992.

The inquiry led to the recommendation that the potential liability of senior executives and directors of corporations be expanded in cases where the health and safety of their employees was jeopardized.

The title of the bill suggests a focus on the liability of corporations. However, the bill actually goes further than the title suggests and beyond the recommendations that came out of the inquiry. It allows for the prosecution of almost any level of employee, manager or director if they undertake or have the authority to direct how an individual carries out his work.

If convicted of an offence under Bill C-45, individuals can be sentenced to terms up to 10 years if a workplace injury resulted from their acts or omissions, and up to life in prison if a death occurred. Organizations, which of course cannot be imprisoned, face fines which were left unlimited by the bill.

It is important to understand this is separate from Occupational Health and Safety legislation. Offences under Bill C-45 are investigated by the police, who have much broader powers in the context of investigations than health and safety inspectors. If charges are laid, they are prosecuted in court by Crown attorneys and, as set out above, the potential penalties can be severe.

The first prosecution pursuant to a charge under Bill C-45 arose from the April 2004 death of a construction worker in Ontario. Despite clear instructions from the owner of a home whose foundation was being repaired, the contractor did not instruct his workers to shore or slope the trench. While work was ongoing, the trench collapsed and a worker was buried.

The contractor, Domenico Fantini, was charged with criminal negligence causing death in accordance with Bill C-45. That charge was ultimately withdrawn as a result of a plea bargain agreement. Fantini pleaded guilty to three counts under Ontario’s Occupational Health and Safety Act and was ordered to pay more than $50,000 in fines.

Although that prosecution did not proceed to trial, it should send a clear warning to front-line managers and supervisors. When accidents occur that result in the death of a worker, it may well be that the police investigating the matter will focus on whoever was in charge of the situation.

In most cases, that will not be executives or directors of the company, but the supervisor or person in charge of the site. Corporate responsibility will not only apply to those people traditionally thought of as the directing minds of the company.

Recently, concrete products manufacturer Transpavé in Saint-Eustache, Que., became the first organization to be charged with an offence under the Westray bill. The charge resulted from the death of Steve L’Ecuyer, a 23-year-old employee who was crushed to death by heavy machinery.

The matter is still in its early stages. However, if it proceeds, it may shed some light on how prosecutions under the Westray bill will differ from previous prosecutions of corporations for negligence causing death before the bill came into force.

The intent of the bill was to create a lower threshold, making it easier for prosecutors to pursue organizations and individuals when people are hurt or killed at work. How this will play out in practice, however, remains to be seen.

Corporations and all employees should be aware of the Westray bill and keep in mind they can be criminally sanctioned for actions or omissions that result in the injury or death of another. Hopefully, future disasters will be avoided.

Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or by e-mail at [email protected].

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