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Criminal convictions for OHS remain very rare

C-45 was meant to revolutionize workplace safety -- that was 12 years ago

Todd Humber

Thirteen years ago, I wrote an article for Canadian HR Reporter with the headline “Putting the boss behind bars.”

It detailed the story of Blair Hallett. His 14-year-old nephew, Shane Stecyk, was killed on the job at a condominium construction site in Edmonton on only the second day of his summer job. The first thing Hallett did was call 911. The second thing he did, as overheard by the 911 dispatcher, was to tell a foreman at the worksite: “Workers’ comp will be here right away, so you get that railing up right now.”

Kevin Flaherty of the Alberta Workers’ Health Centre told me in an interview, “If there was ever a case that would elicit a jail sentence, this would be the one you think would certainly.”

Over the last 13 years, variations of that have been uttered following the deaths of countless workers — but jail time has been exceedingly rare. It’s possible under provincial health and safety legislation, but those are very dusty and rusty sections.

When I wrote the story about Hallett, it looked like the landscape when it came to OHS and jail time was going to change immensely. In 2004, the federal government passed Bill C-45, the so-called “corporate killing law,” which made it possible to lay criminal charges and jail individuals. The federal law came in the wake of the Westray coal mine disaster, when 26 workers were killed in an explosion in Nova Scotia in 1992.

We spilled a lot of ink discussing how C-45 would revolutionize workplace safety — what with the potential for unlimited fines and for senior company directors to be held criminally responsible. But criminal charges just never materialized.

The first charge to be laid came in 2005. Domenico Fantini, a supervisor, was charged under C-45 after a trench collapsed and one of his workers was killed. But the criminal charges were withdrawn after he pled guilty under the provincial Occupational Health and Safety Act and was fined $50,000.

In 2008, Transpavé in Quebec was charged after a worker was crushed to death by a packing machine. It was convicted under the criminal charges, but nobody was jailed and the company was fined $100,000.

In 2010, Pasquale Scrocca — a landscape contractor in Quebec — was found guilty of criminal negligence causing death after one of his employees was killed on the job. He was sentenced to two years less a day, with the sentence being served in the community with a number of conditions, including a curfew.

Multiple other charges have been laid, but were subsequently withdrawn or otherwise ended without any jail time being meted out.

In February, an article in Canadian Employment Law Today detailed the story of two corporate directors in Ontario who were sentenced to 25 days in jail, to be served on weekends, after a worker fell from an elevated platform — supported by a forklift — and died. The company was fined $250,000. But those charges were under the provincial act, not federal C-45 criminal charges.

But now, some 12 years after C-45 was enacted, we have an example of a supervisor being sentenced to jail. As outlined in one of this issue’s cover stories, Vadim Kazenelson was sentenced to three-and-a-half years in prison. He was a project manager at Metron Construction, the company doing work at a Toronto apartment building. On Christmas Eve in 2009, a swing stage collapsed and four workers plunged to their deaths. A fifth worker was severely injured.

So what has changed in light of the Metron case? Well, don’t expect the floodgates to open for criminal charges in OHS cases. We’ve had a decade plus of this possibility, so it’s unlikely and probably naive to think that will occur. But what has changed is criminal liability is more than just a theoretical issue now. A project manager is heading to jail, convicted of a crime, in the deaths of employees. (An appeal has been filed, so this case isn’t closed yet.)

It took far longer than many would have guessed for an employer to face jail time under the criminal code amendments. But now a precedent has been set — police and prosecutors who may have been reluctant to lay charges, because they didn’t think they had a reasonable chance of conviction, can now clearly see where the bar has been set by a judge.

The next time someone says “if there ever was a case that deserves jail time,” they might find a more willing ear from the Crown.

There is nothing more important for an employer than ensuring every worker goes home safe at the end of the day. Good OHS practices are a core part of good HR practices — they go hand in hand. This ruling can serve as a talking point for your current HR practices. Use the fact a company manager was sentenced to significant jail time as a launching point for a serious review to ensure your company is doing everything it can when it comes to safety.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Todd Humber

Todd Humber is the publisher and editor-in-chief of Canadian HR Reporter, the national journal of human resource management. Follow him on Twitter @ToddHumber
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