(I am going to apologize up front for this article, I try to keep my stuff as non-technical as possible and easy to read, but with this legal stuff, it is just to hard to remove all the ?legalize? so please bear with me)
When it comes to workplace safety Bill C-45 is the mantra that is recited. Born out of the tragic deaths of 26 miners at the Westray mine explosion in May of 1992, Bill C-45 was crafted to add teeth to the Criminal Code of Canada. The additional tragedy to the Westray disaster was that after all the dust had settled, the inquiry looking into the disaster described the conditions at the mine as ? a complex mosaic of actions, omissions, mistakes, incompetence, apathy, cynicism, stupidity and neglect?. The company which operated the mine and two of its executives were charged with manslaughter, but the charges were stayed, so no one was brought to justice. Matter of fact one of the biggest problems was that there was no real mechanism to effectively deal with this kind of situation. That is where Bill C-45 stemmed from, from the memory of the tragedy was born a Bill which attempts to provide a method to charge companies and/or its management and supervisors in cases where there actions lead to the injury or death of employees.
Bill C-45 came into law on March 31, 2004. Now is primarily found as sections 217 to 219 of the Criminal Code of Canada.
The five highlights of the law are:
The criminal liability of corporations and other organizations no longer depends on a senior member of the organization with policy making authority having committed the offense. This means that ?senior officers? of the organization can be found criminally liable. Senior officers need not just be the company CEO, but rather anyone setting company policy or managing an important part of the organizations activities.
That the physical and mental elements of criminal offenses attributable to corporations and other organizations no longer need to be derived from the same individual. This means that the actions, errors, or omissions of two or more people can ?add up? to make th
e organizations a party to the offense. It is not therefore necessary that a single representative commit the entire act.
The class of personnel whose acts or omissions can supply the physical element of a crime attributable to a corporation or other organization has been expanded to include all employees, agents and contractors. Basically this means if any representative of the company commits an offense while representing the organization, the organization is a party to the offense. An explicit legal duty has been placed upon those with responsibility for directing the work of others, requiring such individuals to take reasonable steps to prevent bodily harm arising from such work.
Who is responsible? Every one who undertakes or has 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. This means if you are supervising, training, or otherwise directing a person, you must ensure they are doing the work safely. What ?reasonable steps? means has not yet been tested sufficiently in court, however your best line of defense is to follow Workers Compensation Act and regulations and any other safety legislation that applies to your workplace. By the way, the Act/Criminal Code does not use employee to describe your workers, but rather ?representative? so that means it also covers things like directors, partners, members, agents, and contractors, as well as employees.
In offenses based on negligence, the court must determine whether an individual acted so carelessly or with such reckless disregard for the safety of others as to deserve criminal punishment. In general for an organization to be found guilty of committing a crime of negligence, the Crown will have to show that employees of the organization committed the act and that a senior officer should have taken reasonable steps to prevent them from doing so.
For the courts to convict a company, the Crown would have to show that the management fell well below the standard of care expected in the circumstances. In making this determination, the court would have to consider WCB and other acts and regulations, as well as industry practice and procedure.
Whew, that was a tough way to start the day, having to read that. Basically this all boils down to ?due diligence?. As a company, organization, CEO, director, manager, supervisor etc. you have to be able to demonstrate that you have taken all reasonable steps to prevent or avoid an incident and you have to be able to prove it? ie document it.
This law is young still, and to date there has not been a successful charge of a company in the courts, but that is not expected to continue, and there are several cases before the courts which may end up as successful prosecutions under this law. But you may be wondering how organizations are punished for committing crimes though if not under this law. Well the answer to that rest in the fact that we live in a land of laws, and although we have not had a successful case under Bill C-45 yet we do have other laws. Laws like your provincial Occupational Health and Safety Acts, we have regulatory groups like the EUB (Energy & Utilities Board) in Alberta or the OGC (Oil & Gas Commission) in BC who all have various mechanisms which can include fines and other penalties which can be levied against organizations who don?t comply with the regulations. And while they cannot send someone to jail, they can cause very real financial pain to these companies.
So for those of you wondering why all of a sudden you are having to deal with safety a lot more the last few years and why you are having to document and sign so many more safety forms or attend more safety training I hope this helps explain where the companies are coming from.
Stay safe and I will talk to you again next week.
Rob Mandeville is a Safety Advisor and Auditor at Action Health & Safety Services. He has his OH&S certificate from the UofA, and is currently studying for his CRSP ( Board of Canadian Registered Safety Professional) exams. If you have a question about health and safety or an idea for an article you can reach him at email@example.com