Criminal conviction in death of worker

Case a reminder Bill C-45 carries real risk of accountability
By Norm Keith and Anna Abbott
|Canadian HR Reporter|Last Updated: 10/10/2011

A second employer has been convicted of a Bill C-45 charge in Quebec. Pasquale Scrocca, a landscape contractor, was found guilty of criminal negligence causing death with respect to a workplace incident resulting in the death of employee AnielloBoccanfuso. (The first C-45 conviction came in 2007 when Transpavé pled guilty to criminal negligence in the death of a worker.)

The judgment, R. c. Scrocca, marks the first trial decision examining the occupational health and safety (OHS) criminal negligence provisions under the Criminal Code.

In 2004, Bill C-45 established OHS negligence as a criminal offence. After a dormant period, several instances of OHS criminal negligence charges have been laid against individuals and corporations — the most publicized being those laid in connection with the deaths of four workers in Toronto who fell from a faulty swing stage in 2009. Prior to Scrocca, no other OHS criminal negligence case had proceeded to trial.

Boccanfuso was killed when a backhoe, driven by his employer, failed to brake and pinned him against a wall. The machinery was bought in 1976 and had not undergone regular maintenance since that time. A mechanical inspection after the incident found it had no braking capacity in the two front wheels, no brake fluid in the reservoir and a total braking capacity of less than 30 per cent.

Scrocca admitted a certified mechanic had not inspected the backhoe for at least five years and he had failed to check the brake fluid because the reservoir cap was broken. However, he told the court he did not have the requisite mensrea — or intent — required to be found guilty of criminal negligence.

Scrocca argued he was not aware of the braking issue because, at the time of the accident, there were no regulations in Quebec requiring regularly scheduled maintenance for heavy equipment. The court held the intentions of Scrocca had no place in the analysis. In criminal negligence cases, there does not have to be a positive intention for the result of the act.

There was a clear breach of the duty of care imposed on an employer under section 217.1 of the code — the duty to take reasonable steps to prevent bodily harm to a worker, it said. In failing to maintain the vehicle, Scrocca placed himself in a position where he could not be sure of its mechanical fitness.

As a result, he would not know the risks associated with its use, which recklessly put the lives and safety of workers in danger.

The argument the machine was brought to a mechanic when there was a major problem was not sufficient to meet the duty, said the court. Furthermore, Scrocca’sreasons for failing to perform regular maintenance (because he did not observe any issues) was indefensible and unacceptable.

After a joint submission from the Crown and the defendant on sentence, the court imposed a conditional sentence of imprisonment of two years less a day. The sentence will be served in the community with conditions, including a curfew.

This case serves to remind employers, supervisors, officers and directors that the OHS criminal negligence provisions carry a real risk of accountability.

Organizations must be proactive in assessing and managing workplace risk. Unfortunately, this case dealt with an individual defendant so organizations and senior officers will have to continue to wait for guidance from the court with respect to duties and responsibilities under these provisions.

The following cases are currently before the courts awaiting resolution:

Case: Metron Construction

Facts: Four workers died when they fell from a swing stage they were using to repair balconies at a Toronto apartment building that came apart. A fifth worker was critically injured. A total of 61 charges against Metron, the company supervisor and scaffold supplier Swing “N” Scaff were also laid by the Ministry of Labour.

Status: Criminal proceedings are underway, a preliminary inquiry is scheduled for dates in April, May and September 2012. OHS charges are on hold until the criminal matter is resolved.

Case: The Queen of the North

Facts: Former BC Ferries navigating officer Karl Lilgert was charged with criminal negligence causing death after two people drowned when the Queen of the North veered off course and sank. Fifty-seven passengers and 42 crew members abandoned ship before it sank. Two passengers were never found and declared dead. Lilgert pled not guilty.

Status: A preliminary inquiry was completed in 2011. Trial dates have been set for January 2013.

Case: Weyerhaeuserand the United Steelworkers

Facts: A worker died when debris fell on him as he tried to clear a jam in a hopper full of wood debris at a Weyerhaeuser sawmill. The Crown decided not to prosecute Weyerhaeuser for criminal negligence causing death, though WorkSafeBC later fined it for $297,000 in relation to the worker’s death. Unhappy with the Crown’s decision not to lay criminal charges, the United Steelworkers union decided to bring a private prosecution on the worker’s behalf. During hearings in October and November 2010, the union called 23 witnesses to give evidence before the judge who will allow the crown or a private prosecutor to pursue charges against Weyerhaeuser.

Status: Charges were stayed by the Crown on Aug. 24, 2011, after it took over the prosecution.

Norm Keith is a partner at Gowlings’ Toronto office and leader of the national occupational health and safety group. He can be reached at norm.keith@gowlings.com. Anna Abbott is an associate at Gowlings’ Toronto office, practising in the occupational health and safety and employment and labour national practice groups. She can be reached at anna.abbott@gowlings.com.

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