'What's really important is employers remember not to lose sight of the people aspect’
A B.C. Supreme Court judge issued a “rare” guilty verdict to an employer on Dec. 10, finding it criminally negligent in its safety practices, following the death of a worker on a job site in 2012.
Jeff Caron, 27 years old at the time, was working as a pipe layer on a Burnaby worksite when the trench he was in collapsed and crushed him to death.
Vancouver lawyer Michelle Jones, partner at Lawson Lundell, says many employers are unprepared when a fatality happens.
“A lot of employers, where this goes wrong is it's their first time having a really serious incident,” Jones says.
“Often the whole mechanism of reporting and investigating and regulators coming in, all of that kind of becomes a real stress and a takeover. And what's really important is employers remember not to lose sight of the people aspect.”
Immediate response after workplace death
Jones breaks down the employer response into phases, starting with the immediate minutes after the incident, which involves calling emergency services and securing the area so it is safe for other workers. What comes next is trickier, she says, as this is when the employee’s family must be called.
Jones explains that it’s a moment where many employers stall.
“What can we tell the family? Sometimes you don't know what the state of the individual is,” she says.
“It's not always the case that right away you know it's a fatality, but you can at least advise them there's been a serious incident and that there's emergency personnel on site.”
Statutory obligations after accidents
Vancouver-based lawyer Graeme Hooper of Hooper Law also stresses that the initial response is about more than emergency services. He says employers often forget that a serious incident or fatality immediately triggers legal duties.
“Whenever there is a serious incident or fatality in the workplace, most people understand the need to render aid and call emergency services,” he explains.
“But what people may forget in the moment is that these types of incidents trigger a whole host of statutory obligations. That includes securing the scene and not tampering with evidence, immediately notifying workplace health and safety regulators, and beginning to carry out an investigation into the incident.”
Dealing with regulators, investigators
In the J. Cote & Son case, WorkSafeBC investigated the trench collapse, and the B.C. Supreme Court ultimately found the company guilty of criminal negligence causing death and criminal negligence causing bodily harm.
Hooper notes that, in the immediate aftermath of a workplace death, employers may face multiple investigators on site, each with different powers and expectations, which can be daunting.
“One of the major challenges is navigating rights versus duties,” he says.
“You have [a] right to remain silent when speaking with anyone gathering evidence for a potential prosecution. You have a duty to speak to certain regulators who are carrying out investigations into the cause of the incident. Often, you will have both types of investigators at the scene at the same time. That can be confusing on your best of days. You will need to know the difference on your worst of days. It's hard.”
He says that, across Canada, the division of roles is broadly similar, even though statutes vary, “but generally the health and safety regulator will be the one to carry out the investigation into the cause of the incident, and will make the determination on whether or not to consider charges or, in British Columbia, recommending charges.”
Rising criminal exposure for employers
The Caron case is one of a small but growing number where prosecutors have pursued criminal negligence in connection with a workplace death. In this case, the foreman was acquitted, but the company was convicted based on its safety systems and its interpretation of an engineering certificate that did not properly address retaining wall risk.
Hooper says employers should be aware of how the criminal landscape has shifted in recent years – criminal charges for employers remain rare, he says, but there has been a “significant increase” in the last five years, nationally.
“For a long time, many of us believed that the standard to convict on criminal negligence, which requires showing not just a departure but a ‘marked and substantial’ departure from the standard of care, was a high bar,” Hooper says.
“But with more and more charges and convictions, we are seeing that the bar is not as high as we once thought.”
Jones adds that safety incidents can also cross from provincial health and safety statutes into the Criminal Code when an employer’s conduct falls well below the expected standard.
“If, on doing that, they see that your conduct remarkably failed the standard, now you're getting yourself into the criminal realm,” she says.
“And so those violations aren't under the Occupational Health and Safety Act, they are violations under the Criminal Code, potentially, and so those investigations are typically led by the RCMP with help from the OHS officers.”
Communicating with families
In the Caron case, family members told the court they wanted more accountability from the company for his death, even as they welcomed the conviction.
The way that employers communicate with families after a fatality is a key concern for Jones, who says many organizations hesitate too long to make contact. She stresses that uncertainty about the worker’s condition should not stop employers from calling – as long as they stick to the facts.
“What you don't want to have is a situation where the family is finding out through co-workers or through the media, that there is emergency personnel on site, and that their loved one’s been injured,” Jones says.
“Even if you can't provide all the details … tell them what you do know and give them a single point of contact with your company.”
At the same time, Hooper points out that communication with families and co-workers happens under the shadow of investigations and potential charges, which can muddy where the boundary should be around sharing information.
“In many ways, the law gets in the way of the grieving and healing process following one of these incidents,” Hooper says.
“Obviously as an employer, you may want to reach out to families and employees to give them information. At the same time, with investigators and police asking questions and the cloud of potential prosecution and fines looming over your head, you want to protect your rights.”
Beyond compensation, Jones says small practical details can be very important to families. She points to personal items and vehicles left on site that may be under employer control for some time after a fatality.
“Practicalities that their vehicle is probably still on site. They may have a locker with their personal effects. Sometimes their personal effects, like wallets, phones and all that, are handed back to the employer, not necessarily to the next of kin,” she says.
“So, there's some of that logistical stuff … for the family, that's very important.”
Going beyond minimum compliance
After a fatality, employers will need to show regulators how they have addressed compliance gaps identified in orders and findings. Jones says many employers also use the process to go further than what is strictly required.
“Employers that truly want to prevent similar future instances and truly want to honour the legacy of the lost worker... they're going to put in the time to identify not only ‘How do I comply?’ But also, ‘Even if I was compliant at the time, are there things that I could do better to help avoid similar incidents?’”
In the Caron verdict, the B.C. Supreme Court judge focused on management-level failures and the overall safety system.
“Their concentration isn't so much on the actions of the individual. They tend to take a systemic approach, in the sense that they're looking at the systems and the safety structures, safety policies, procedures, training... to figure out how it failed.”
Hooper says that, in practice, it is often the human impact of a death that drives meaningful change, rather than the threat of prosecution alone.
“Losing a coworker, often a friend, often someone who was doing something that you yourself have done, that hits people,” he says.
“We learn through truth and stories. When employers and workers are permitted to step away from pointing fingers or strategizing defences with their lawyers, and to tell their stories, that's when real learning and change happens.”
