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Bill C-45: A hollow threat?

Has the ‘corporate killing law’ made workplaces safer and changed employers’ ways?

By Jeffrey R. Smith

Workplace safety is something that should always be a priority for employers. Occupational health and safety legislation in every Canadian jurisdiction places heavy responsibility on companies to take reasonable measures to ensure their employees can do their jobs with as little risk as possible.

This can be challenging in industries where workplaces naturally have dangers, such as construction sites, machine shops and workplaces with chemicals. And it also makes sense for employers to have employees feeling safe so they can focus on their jobs. But how far should regulators go to enforce health and safety?

Usually, when an employee is hurt or killed on the job, employers can get into trouble if the accident can be traced to conditions in the workplace that are the result of the employer or its management’s failure to take as many precautions as is necessary and reasonable to prevent those conditions. Occupational health and safety charges can result if an employer didn’t meet its obligations, which can result in fines, the size of which can depend on the seriousness of the unsafe conditions.

However, since 2004, fines aren’t the only thing employers need to worry about if an employee is killed at work. That year, the Criminal Code was amended by Bill C-45, known commonly as the “corporate killing law.” Under these amendments, organizations and individual members of management could be charged with criminal negligence causing death in the wake of an employee’s death at work. A conviction under this law could bring not only fines, but also jail time.

Last year, the United Steelworkers’ Union pushed for charges under Bill C-45 to be filed against forestry company Weyerhaeuser in connection with a 2004 death of a sawmill worker who fell into a wood chip machine while trying to clean it. The union saw the need for charges after a WorkSafe BC investigation found Weyerhaeuser was aware of the hazards the worker faced and didn’t address them adequately. The company was fined $297,000 — the highest fine WorkSafe BC had ever issued.

Police recommended charges under Bill C-45, but Crown prosecutors declined to lay any. This prompted the union to pursue a private criminal prosecution, which led to a process hearing where a provincial court heard additional evidence and testimony last year. However, the Crown decided to stay the charges, stating it didn’t feel it would be able to secure a conviction.

This is just the latest in a series of cases where charges were either considered or laid under C-45 but failed to result in a conviction. In the seven years since the amendments came into force, there have been only two convictions, both in Quebec — though a construction company and three individuals are currently facing charges in Ontario over the deaths of four construction workers.

It’s not like workers aren’t dying — an average of 889 a year from 1993 to 2009, including 939 in 2009 and 1,036 in 2008, according to the Association of Workers’ Compensation Boards of Canada (www.awcbc.ca). And most of the time, accidents causing injury or death result in fines, as was the case before C-45 came into force. So, given the lack of convictions, has Bill C-45 made workplaces safer? Has the threat of its punishment changed the way less-safe employers operate, or are prosecutors just reluctant to use it? Do employers need to really be concerned about it?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information, visit www.employmentlawtoday.com.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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