However private prosecution faces major hurdles
The United Steelworkers has launched a rare private prosecution against Weyerhaeuser Company Ltd. in what the union hopes will be a test case for workplace safety in Canada’s forest industry.
A 2004 amendment to the Criminal Code –– known as the Westray amendment –– changes the liability of organizations, making executives and corporate directors responsible for the deaths of workers, and it makes senior officers responsible for health and safety in their organizations.
To date, there has only been one criminal conviction under this charge, something the Steelworkers want to change by bringing Weyerhaeuser to trial for the death of Lyle Hewer.
The fifty-five-year-old sawmill worker died in November 2004 when he tried to clear a jam in a hopper filled with wood debris at Weyerhaeuser’s New Westminster, B.C. sawmill. The chips came loose, engulfed him and he died of asphyxiation.
Following a two-year investigation, WorkSafeBC levied the highest fine it had ever imposed –– $297,000 –– against Weyerhaeuser, saying management ignored safety concerns and condoned a culture where “complacency in the face of danger became the norm.”
According to the incident investigation report, the machine was known to be dangerous but senior management resisted work orders from line managers to make it safer. It was fixed after Hewer’s death, at a cost of $30,000.
Crown counsel did not lay charges, saying there was not enough evidence to support a conviction.
“What other part of our society allows this to happen?” says USW regional director Stephen Hunt adding, “If you’re in a motor vehicle accident, there are repercussions. If you’re drunk and you kill somebody, you go to jail. If you make a product that is defective or makes people sick, there are consequences. But in Canada it seems you can kill or harm a worker and the consequences are a provincial slap on the wrist.”
The Steelworkers were the force behind the amendment to the Criminal Code, coming out of the 1992 Westray mine disaster in Nova Scotia that killed 26 coal miners. Criminal charges against two on-site managers were withdrawn. At the time, there was no law holding senior company executives responsible for safety warnings that were ignored.
Hunt is frustrated that only one company, Transpave in Quebec in 2008, has ever been convicted under the amendment.
“The last thing I want is to see people go to jail or go through the court system” he says. “I’d rather have people say, ‘You know, the Westray law is out there and if we mess up, boy it’s a bad one. Not only does somebody lose their life, which is horrific, but there are consequences for us at the board table.’ That, to me, would be the best result.”
The union faces two major legal hurdles with a private prosecution. First, the Steelworkers’ lawyer must convince a judge there is enough evidence to issue a summons. Then the Crown will weigh in, once again, to decide if there is there is sufficient evidence to support a conviction.
“[The union] may be trying to use another mechanism to have the Crown have a further look at the case and pursue it in a much more public eye,” says Jeremy Warning, an employment lawyer with Heenan Blaikie in Toronto.
He says private prosecutions are “rare and would be rare in a case like this where it’s an indictable offence.” However, if the case does proceed –– and succeed –– at trial, Warning says organizations will have to be mindful of the information they collect during internal investigations.
