Criminal Liability for OHS ViolationsA Review of 10 Years of Bill C-45 Cases

Presented by: Adrian Miedema, Dentons Canada LLP

Bongarde Webinar, April 8, 2015

Two Types of Safety Offences

• Provincial

• Criminal

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Two Types of Safety Offences

• Provincial: prosecuted by provincial ministry of labour / workplace safety agency

• Criminal: prosecuted by police / criminal prosecutors

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Bill C-45 (amended Criminal Code, 2004)

217.1 “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.”

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Bill C-45: Workplace Safety Duty

217.1 “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.”

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Criminal Negligence

219. (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

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Bill C-45 Cases

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• Fatality (trench collapse)

• Outcome: charges withdrawn (2005) - pleaded guilty to provincial OHSA charges

Domenico Fantini (Ontario, 2004)

Bill C-45 Cases

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• Fatality (crushed by heavy machinery)

• Outcome: Company pleaded guilty (2008) and was fined $110,000.00

Transpavé (Quebec, 2005)

Bill C-45 Cases

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• Fatality (employee struck by a backhoe driven by Scrocca)

• Outcome: guilty (2010) – failed to adequately maintain brakes on backhoe. Sentenced to two years less a day.

Pasquale Scrocca (Ontario, 2006)

Bill C-45 Cases

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• Fatality and 3 injuries (collision of locomotive and track maintenance vehicle)

• Outcome: not guilty (2010)

Simon Gagné and Steve Lemieux (Quebec, 2006)

Bill C-45 Cases

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• Fatality (two passengers lost and presumed drowned)

• Ferry’s navigation officer charged in 2010

• Outcome: guilty (2013; upheld on appeal, 2014)

• Sentenced to 4 years and a prohibition from operating a vessel for 10 years

Karl Lilgert (Queen of the North case) (B.C., 2006)

Bill C-45 Cases

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• Automotive garage supervisor

• Employee caught on fire

• Outcome: pleaded guilty (2012)

• Received absolute discharge

Mark Hritchuk (Quebec, 2007)

Bill C-45 Cases

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• Four deaths (swing stage scaffolding collapsed)

• Metron Construction, director and supervisor charged

• Outcome: Metron pleaded guilty, fined $750,000.00 (increased from $200,000.00 on appeal)

• Director, Joel Swartz, pleaded guilty to 4 OHSA charges and was fined $90,000.00 plus 25% Victim Fine Surcharge

• Supervisor, Vadim Kazenelson criminally charged, committed for trial

Metron Construction Corporation (Christmas Eve Fatalities) (Ontario, 2009)

Bill C-45 Cases

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• Fatality (crane collapsed)

• Company, crane owner and crane operator charged

• Outcome: criminal charges withdrawn

• Company convicted under Ontario OHSA of failing to ensure that the crane was maintained in a condition that would not endanger a worker. Fined $70,000.00 plus Victim Fine Surcharge

Millennium Crane Rentals Limited (Ontario, 2009)

Bill C-45 Cases

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• Fatality (sawmill)

• Union initiated private criminal prosecution

• Criminal Justice Branch took over prosecution

• Outcome: charges stayed (2011)

Lyle Hewer fatality – Weyerhaeuser (B.C., 2004)

Bill C-45 Cases

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• Fatality (death of a nursing home resident)

• Personal care worker charged

• Outcome: charges withdrawn

Diane Peck (Ontario, 2011)

Two Immigration Cases

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• Sought permanent residency in Canada

• Criminal judgment from court in Taiwan and Spain respectively:• negligently killed another by neglecting to exercise the degree of care required

by such occupation

• gross negligence manslaughter and offence related to the rights of workers because of his responsibility for a workplace accident

• Outcome: applications for permanent resident status rejected because committed an “equivalent Criminal Code offence”

Lu (2011) and Ulybin (2013)

Summary

• Bill C-45 charges still rare

• Only 10 prosecutions in 10 years

• Only 5 convictions

• Versus 780 convictions under Ontario OHSA in 2013/14 alone

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Summary

• 6 individuals, 4 corporations charged

• Individuals:• 1 withdrawn

• 1 acquittal

• 3 convictions

• 1 ongoing

• Corporations:• 2 withdrawn

• 2 convictions

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Summary

• 3 provinces:• Ontario: 4

• Quebec: 4

• B.C.: 2

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Summary

• 9 of 10 involved fatality

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Summary

• Increasing public pressure for charges

• Increasing union pressure for charges

• Unions may initiate private prosecution

• Significant media risk

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Why so few Bill C-45 charges?

• Police defer to provincial OHS investigators

• Police not comfortable / skilled prosecuting offences arising out of workplace?

• Very difficult to prove that supervisor showed “wanton or reckless disregard for the lives or safety of other persons”

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Risk Management – Bill C-45

• Provincial OHS officers and police may co-operate

• Provincial OHS officers have authority to compel statements and production of documents

• Treat provincial and OHS investigations separately

• If provincial OHS investigators and police both investigating, put plan in place for managing criminal risk

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Keys to Avoiding Bill C-45 Charges

1. Regularly identify and assess hazards

2. Deal immediately with identified hazards

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Questions?

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Adrian Miedema(416) 863-4678adrian.miedema@dentons.com

Dentons Canada LLP77 King Street WestSuite 400Toronto, Ontario M5K 0A1Canada

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