Supervisor facing criminal charges

Ontario construction supervisor first person to be charged under new “corporate killing” law

A 68-year-old construction supervisor in Ontario has become the first person in the country charged under the new corporate killing law.

Bill C-45, also known as the corporate killing law, came into force on March 31, 2004. The bill essentially amended the Criminal Code to allow criminal charges to be brought against co-workers, supervisors, executives and employers when a worker is killed or injured on the job.

Domenico Fantini, of Newmarket, Ont., was arrested by York Regional Police and charged with criminal negligence causing death on Aug. 26.

Fantini was supervising two workers who were repairing a drainage problem with the foundation of a house when the trench they were working in collapsed on April 19, 2004.

Ameth Garrido, a 38-year-old Toronto man, was in the trench when the ground gave way and he was trapped by heavy dirt. By the time emergency workers arrived on the scene, he was dead.

Norm Keith, a partner at the Toronto firm of Gowling Lafleur Henderson and author of Workplace Health and Safety Crimes, said the charges send a message that the law is real and it will be enforced.

“It’s definitely a wake-up call for employers of all kinds, not just construction, that (the law) is going to be aggressively enforced by the police, probably with the encouragement or assistance of health and safety regulators,” said Keith. “It’s also a big wake-up call for supervisors and managers to say ‘Look. Bill C-45 puts you personally at risk, not just the president of the company.’ And I think they’re at greater risk than a senior executive or a director. Because the police on the ground are going to say ‘Okay, something awful has happened. Who is in charge here?’ And the most proximate, closely-related person in charge is going to get the most scrutiny.”

The fact supervisors and foremen seem to be at the greatest risk of prosecution is contrary to what the federal government intended as the purpose of the amendments, he said.

The legislation stemmed from a public inquiry into the Westray mine disaster in Nova Scotia. One of the numerous recommendations from the inquiry was to increase the ability to hold senior executives and directors of companies liable for health and safety crimes.

But C-45 was much broader and allows criminal charges to be laid against anyone who was directing how work was done or had authority to direct how work was done, said Keith.

“This is a much broader amendment to the Criminal Code than recommended by the Westray inquiry,” he said. “Circumstances being what they are, police would naturally look for the more direct supervisor of an injured or fatally injured worker than a senior executive or company president.”

If convicted, Fantini could face up to life in prison or a fine.

“Under the Criminal Code, he can be given a fine of an unlimited amount,” said Keith. “There is no maximum fine for an individual charged with an indictable offense, so in theory he could be facing millions of dollars in fines. But in practice, to fine an individual that amount is foolish because he never would be able to pay. But there actually is no upper limit on the fine. That’s another terrible thing that managers and supervisors have to worry about.”

Fantini is scheduled to appear in court on Sept. 28.

For more information about Bill C-45 and the corporate killing law, see pages 3230-3231 of CELT #413, May 12, 2004.

UPDATE: Criminal charges dropped

Criminal charges dropped in first ‘corporate killing’ case

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