June 25, 2015
Most people know that a company itself has OHS obligations, and that it risks corporate liability if it violates those obligations. However, not everyone knows that the company’s directors, officers and supervisors share many of those OHS obligations – and liability risks. Here are 3 reasons for everyone – particularly directors, officers and supervisors – to take occupational health and safety personally:
1. You personally can be charged when there is a workplace accident – and prosecutions are on the rise.
Personal culpability under occupational health and safety laws isn’t new. But the relatively recent addition of personal criminal liability has resulted in OHS violations having a more criminal appearance. It’s also increased the pressure to punish employers and their representatives for workplace accidents. The result: more charges and more prosecutions against more organizations – and against more directors, officers, managers, supervisors and workers.
Occupational Health & Safety Charges. Virtually every employer, regardless of whether it’s a corporation, a partnership, or a sole proprietor and regardless of whether it falls under provincial or federal regulation, is subject to OHS laws. OHS laws impose the obligation on multiple parties – including not just companies, but individual directors, officers, managers, supervisors and workers – to take every reasonable precaution in the circumstances to ensure the safety of its workers (and anyone else who is in the workplace). OHS officers typically conduct the investigations and decide whether an OHS law was violated and whether – and who – might be charged for any violation. A violation of an OHS law is “quasi-criminal”: it’s not a criminal offence, but it’s subject to a penalty that’s similar to a criminal offence although the court procedures are less complicated. “Due diligence” is a legal defence to many charges under occupational health and safety laws – but it’s only available if you can prove it.
Criminal Charges. Canada reached a turning point in 1992 when 26 miners died after an explosion in the Westray mine in NS. Serious safety concerns about the conditions at the mine were raised by employees, union officials and government inspectors; however, the company instituted few changes. Police and provincial government tried – but failed – to convict the company or any of three managers. A Royal Commission of Inquiry investigation ultimately led to Bill C-45 and the addition of section 217.1 to the Criminal Code of Canada:
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.
Section 217.1 expanded criminal law into the workplace by imposing a legal duty on anyone and everyone who directs the work of others – and imposes personal criminal liability on the people who fail to meet that duty. And while a conviction under OHS laws doesn’t give you a criminal record, a conviction under the Criminal Code does.
2. You personally can be fined – and the fines are getting higher.
Fines can be imposed on individuals under both OHS laws and the Criminal Code. OHS laws in most Provinces and Territories authorize the imposition of a fine on both organizations and individuals who violate them. The amount of the fine will vary depending on the Province or Territory, the nature of the violation and who (or what) gets charged. The Criminal Code also authorizes a court to impose a fine on both organizations and individuals who violate section 217.1 – and there’s no set limit on the amount of that fine. The trend in fines imposed under OHS laws and under the Criminal Code: fines are being imposed – and they’re getting higher. Here’s an example:
Director Fined. In an Ontario case, a suspended work platform holding six workers collapsed. The platform was overloaded, defective and hazardous. Five workers fell to the ground: four died, one was seriously injured and one – the only worker wearing proper fall protection – wasn’t injured. The company owner and director was charged personally under the Criminal Code for failing to take reasonable care. He pleaded guilty – and agreed to a personal fine of $90,000. Read the Ontario Court of Justice’s decision in R. v. Swartz, 2012 ONCJ 505 here. Notably, the company was convicted of criminal negligence under the Criminal Code; the Crown prosecutor asked for a $1M fine and the company asked for $100,000. The first court set the fine at $200,000 – but the Ontario Court of Appeal increased it to $750,000. Read the Ontario Court of Appeal’s decision in R. v. Metron Construction Corporation, 2013 ONCA 541 here.
3. You personally can go to jail – and the sentences are getting harsher.
You can’t put a company in jail – but you can put the company’s people in jail. Both OHS laws and the Criminal Code authorize jail time for individuals – and that includes directors, officers, managers and supervisors. OHS laws in most Provinces and Territories authorize a court to sentence individuals who violate them to jail time, though there’s usually an upper limit that varies depending on the nature of the violation. The Criminal Code also authorizes a court to sentence individuals who violate section 217.1 to jail time – but there’s no set limit on the amount of time: the sentence can be up to life imprisonment for criminal negligence causing death. The trend under both OHS and Criminal Code: there’s more jail time being imposed- and the sentences are getting longer. Here are two examples:
Directors Jailed. In one case, a forklift operator was working on a platform. The platform didn’t have a guardrail around it and the worker wasn’t wearing fall protection or safety shoes. He fell and died. The Crown charged the company and its directors personally with failing to take reasonable care and failing to provide instruction and supervision. The company and two of the directors pleaded guilty. The company received a $250,000 fine – and the directors were each subject to sentences of 25 days in jail (served concurrently and on weekends) plus 12 months probation. The company and directors have appealed the jail sentences and the fine; the sentences are suspended until the Court hears the appeal. The Ontario court didn’t give a written decision with its reasons in the case (R. v. New Mex Canada Inc.), though the Court of Appeal likely will. But even without a written decision, and regardless of what happens in the appeal, the message is clear: courts can – and will – impose jail time for OHS violations.
Supervisor Jailed. In what appears to be the first case of the conviction of a front line supervisor under section 217.1 of the Criminal Codeand sentencing to a substantial term of imprisonment, a court sentenced a front line supervisor to imprisonment for 3½ years for four counts of criminal negligence causing death and one of criminal negligence causing bodily harm in a tragic 2016 case (R. v. Vadim Kazenelson, aka The “Metron” Case). In another case, an experienced roofer was wearing fall protection but wasn’t tied to anything. He fell from ladder and died. The roofing company’s owner and supervisor initially lied to OHS investigators. The company hadn’t rectified deficiencies OHS officials had noted in an inspection they conducted the previous year, and there was some evidence that the company was aware the worker habitually didn’t use fall protection. The supervisor pleaded guilty; the court sentenced him to 15 days in jail (10 for the violation and 5 for lying to officials). In determining the sentence the court stated the death was preventable – and since the industry hadn’t prevented them so far it’s “appropriate for the Court to send a message that offenders will be dealt with harshly” – and warned that “… if workers continue to fall off roofs in contravention of fall arrest regulations, supervisors can expect that jail sentences will be longer and may well become the norm.” Read the Ontario Court of Justice’s decision in R. v. Roofing Medics Ltd., 2013 ONCJ 646 here.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Occupational Health & Safety Team to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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