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Canadian Criminal Liability Law Marks 10 Years
A decade after C-45, Canadian workplaces are still not statistically safer

By Catherine Skrzypinski  4/7/2014
 
 

A decade has passed since Canada enacted a law that makes corporate executives, directors and managers criminally accountable for workplace injuries and fatalities, but statistics show that Canada is not a safer place to work, compared with 2004.

Bill C-45 became law in Canada on March 31, 2004. The legislation established legal duties for workplace health and safety and imposed serious penalties on organizations whose workers get hurt or killed on the job, said Norm Keith, a partner with law firm Fasken Martineau who specializes in occupational health and safety.

Bill C-45 states that “Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”

In 2004, the Canadian Center for the Study of Living Standards found that Canada’s rate of workplace fatalities—5.8 deaths per 100,000 people—was one of the worst in the developed world. Canada’s Occupational Health and Safety Division Labor Program reported that the numbers rose to 7.24 fatalities per 100,000 workers by 2008.

The situation has not improved in terms of absolute fatalities since enactment of the law either, statistics show. The Association of Workers Compensation Boards of Canada said in 2012 the country recorded approximately 977 workplace deaths—an increase from 958 fatalities in 2004.

The provisions of C-45 have, however, made an impact on Canadian workplaces by:

  • Elevating safety violations to a crime, under the Criminal Code of Canada. The criminal code should not be confused with regular occupational health and safety laws, Keith explained. If convicted of a crime, a Canadian employer may face a penalty of life imprisonment, while an organization may be fined an unlimited amount.
  • Making it a legal requirement for all Canadian employees—including CEOs, senior management, as well as subordinates—to be accountable for preventing injury to workers and the public.
  • Revising rules attributing criminal liability to all Canadian organizations. According to the Canadian Center for Occupational Health and Safety (CCOHS), organizations include federal, provincial and municipal governments; corporations; private companies; charities; and nongovernmental organizations.

The Westray Legacy

The Canadian government enacted Bill C-45 in response to the Westray coal mining disaster in Nova Scotia more than 20 years ago. Twenty-six miners died in a coal-dust and methane-gas explosion in a Pictou County mine in May 1992, and the bodies of 11 miners were never recovered.

In April 1993, the Royal Canadian Mounted Police charged the mine’s owner, Curragh Resources Inc., along with managers Gerald Phillips and Roger Parry, with manslaughter and criminal negligence causing death. However, the case was dismissed for lack of evidence to ensure a conviction.

“Was it a failure of justice to not proceed with a criminal trial?” Keith questioned. “Westray’s corporate leaders were never penalized.”

Police were initially reluctant to get involved in cases during C-45’s first five years as law, Keith stated, but now law enforcement officials are more willing to investigate serious accidents at Canadian worksites.

Since Bill C-45’s passing in 2004, 11 charges have been pressed under the legislation, and three have resulted in convictions, according to the CCOHS.

Twenty years after the Westray disaster, the United Steelworkers union in Canada has continued to lobby Canada’s federal and provincial governments to enforce C-45 more rigorously.

“It is painfully obvious that the provinces do not know how to proceed in criminal prosecutions that involve workplace health and safety,” said Ken Neumann, the union’s national director, in a statement from 2012.

Management Awareness of C-45

Senior management plays a critical role in protecting an organization from actual and potential occupational hazards, Keith said.

Upper management is advised to take the following steps to ensure that their employees are protected in the workplace:

  • Update the company’s occupational health and safety policy annually. In Ontario, an organization’s policy must be reviewed yearly.
  • Undertake a legal compliance audit.
  • Rigorously train and supervise workers.
  • Review and improve occupational health and safety practices.
  • Measure workers’ productivity in annual performance reviews.

“100 percent of a company’s workforce needs to be properly trained in health and safety protocols,” Keith said.

Workplace inspections are the best way to predict and prevent accidents, Keith continued: “Inspections are important as they allow organizations to listen to workers’ and supervisors’ concerns, gain further understanding of jobs and tasks, to report near-misses, and to recommend corrective action.”

Human resource professionals should share responsibility by implementing a due diligence process to ensure legal compliance, according to Keith. A legal risk checklist should include getting buy-in from senior management for worker safety, identifying and assessing risk, eliminating or controlling workplace hazards, engaging managers and workers in safety training, and documenting and auditing safety program compliance.

HR professionals could then prove that their employer has acted responsibly in the prevention of accidents and the preservation of health and safety.

“With some organizations, health and safety is part of its brand and corporate culture,” Keith concluded. “Taking care of its workers is the organization’s business advantage.”

Catherine Skrzypinski is a freelance writer in Toronto.

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