Union’s case alleges Weyerhaeuser Canada criminally negligent
Frustrated by the Crown counsel’s refusal to prosecute Weyerhaeuser Canada for the 2004 death of a sawmill worker in British Columbia, the Steelworkers’ union has launched a private prosecution against the company, alleging it was criminally negligent in the death of Lyle Hewer.
Hewer died at Weyerhaeuser’s sawmill in New Westminster on Nov. 17, 2004, eight months after an amendment to the Criminal Code that holds organizations criminally responsible for workplace fatalities came into effect.
Hewer had entered the bottom of a hopper that feeds waste wood into a large grinding machine, called a hog, to clear debris clogging the machine. He was killed when the debris came loose and fell on top of him.
While no one told Hewer to enter the hopper, he was told to clear the clog and it was common practice to enter the machine to do so, despite the safety risks, found a WorkSafeBC investigation. Management knew about the hazards of the hopper and hog but did nothing about it, which demonstrated a wilful and reckless violation of health and safety regulations, found the investigation.
WorkSafeBC fined the company $297,000, the highest fine it ever levied, and New Westminster police recommended charges be laid under the Criminal Code amendment known as Bill C-45 or the corporate killing law.
But the Crown counsel didn’t lay charges, saying there wasn’t enough evidence for a conviction.
“This one was screaming for a criminal charge,” said Steven Hunt, a regional director at the Steelworkers in Vancouver. “The attorney general in British Columbia, obviously, didn’t think there was any good reason to do it and never explained to us why, other than to say they didn’t think they would get a conviction.”
A process hearing to determine if there is sufficient evidence for the private prosecution to continue will be heard by a provincial court judge on Oct. 26, said Glen Orris, the criminal lawyer pursuing the case on the Steelworkers’ behalf.
“Weyerhaeuser has a duty to ensure the activities of its workers are carried out in a safe manner and that wasn’t done in this case,” he said.
However, even if the court rules there is sufficient evidence for a prosecution, it is unlikely the private prosecution will continue. Instead, the Crown will likely step in and reassess the case to determine whether or not to proceed with a prosecution, said Neil MacKenzie, a spokesperson for the attorney general’s criminal justice branch.
“It’s the criminal justice branch that has the authority to approve and conduct prosecutions in B.C.,” he said. “Generally, branch policy does not permit a private prosecution to proceed.”
Private prosecutions in general are very rare and in most instances, especially in serious criminal matters, the Crown attorney will want to control whether or not a case goes forward, said Cheryl Edwards, national lead of law firm Heenan Blaikie’s occupational health and safety and workers’ compensation group in Toronto.
“We just hope the attorney general can be convinced now that proper diligence and care wasn’t done in this case,” said Hunt. “We think there’s enough evidence to go forward.”
But the burden of proof in a criminal case is much higher than under health and safety regulations, said Edwards. Often, the attorney general requires prosecutors to consider whether the interests of justice will be better served by a criminal prosecution or a prosecution under occupational health and safety legislation.
“It is much easier for Crown prosecutors to proceed with a regulatory occupational health and safety prosecution. The standards they have to meet are much lower,” she said. “They just have to establish a violation of a regulatory provision, not criminal intent.”
It’s very difficult to pierce the corporate veil and prove the most senior executives at a company intended for a fatal incident to occur, said Edwards.
“I think that’s why we’re seeing more regulatory prosecutions and the fines are absolutely astronomical,” she said.
Under the corporate killing law, the Crown must prove there was a “wanton and reckless” disregard for employee safety, said Orris. To show this, the Crown must show an immediate supervisor acted in such a way with the approval of the company, or the company’s senior directors knew of the potential danger and failed to remedy the situation, he said.
“In my view, I think that’s what we have here,” he said.
If there’s something wrong with the law, something that makes it hard for Crown attorneys to get convictions, then the law needs to be changed to make it more effective, said Hunt.
“Currently, there’s very little deterrent value in the law,” he said.
Since the amendment came into effect, the only conviction has been against Transpavé, a paving-stone manufacturer in Saint-Eustache, Que., that pleaded guilty to criminal negligence causing the death of a worker in 2006. The company was fined $100,000 in March 2008.
The only previous charges — against Domenico Fantini, a supervisor at small Ontario construction company Vista Construction — were dropped after Fantini pleaded guilty to three charges under the Ontario Health and Safety Act and was fined $50,000.
There are, however, criminal charges pending against a crane rental company, Millenium Crane, and two individuals in the death of a worker in Sault Ste. Marie, Ont.
But criminal prosecutions might not be the best way to protect workers, especially when unions make it a political issue, said Edwards.
“It’s no longer about safety, it’s about sending people to jail and that doesn’t help the worker. I don’t think it’s going to improve safety in the workplace,” she said. “The right place for prosecution of health and safety offences is in the regulatory area.”
Ideally, the provincial court should find there is sufficient evidence for a prosecution against Weyerhaeuser and the attorney general should aggressively pursue the case, said Orris.
“Weyerhaeuser and other corporations that are dealing with potentially dangerous manufacturing processes have to be put on notice that they have a very significant responsibility to ensure the safety of their workers,” he said.
Weyerhaeuser is taking a wait-and-see approach to the case, said Wayne Roznowsky, Canadian public affairs manager at Weyerhaeuser.
“When Mr. Hewer died, there was a thorough investigation and the decision was made not to go ahead with any charges,” he said. “We fully co-operated with all of the investigations in the past and felt the matter was closed.”
