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In a recent case in Sault Ste Marie the City Police have laid charges against a Crane Operator and the owner of the corporation under the Criminal Code. Since the amendments to the Criminal Code brought about by Bill C-45 in 2004, charges under the Criminal Code for serious occupational health and safety accidents have been extremely rare. However, this case is a reminder that both managerial employees and corporations (corporations are charged by the conduct of its managerial employees) can be charged with criminal negligence causing injury or death under the Criminal Code. Further, a conviction can attract a maximum sentence of life imprisonment for a fatality for an individual or a monetary fine with no cap for a corporation.

Sault Ste Marie city police laid criminal charges against a Crane Operator and the Crane Owner for the workplace death of a third party municipal worker in April of 2009. During the excavation of a sewer, the crane owned and operated by Millennium Crane collapsed and fatally injured an on site municipal worker. The criminal charges were laid 10-months after the accident and are in addition to 5 charges laid by the Ministry of Labour under the Ontario Occupational Health and Safety Act (“OHSA”).

This Millennium Crane case highlights the obligations on employers brought about by the Bill C-45 amendments. The key obligations are as follows:

• The Criminal Code provisions apply to all employers in every jurisdiction of Canada. The Criminal Code provisions are in addition to the obligations that already exist under the OHSA.
• Under Section 217.1 of the Criminal Code, everyone, which includes a corporation or an individual, who has the authority to direct how an employee performs his/her job is under a statutory duty to “take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task”. Prior to Bill C-45, corporations could only be convicted of the criminal acts or omissions of the “directing mind” of the corporation which was an extremely high threshold for the Crown to meet. Therefore, Bill C-45 was intended to broaden the scope of individuals who could be charged by including anyone who directs how a worker does his/her work.
• In order to prove a breach of section 217.1, the Crown must prove beyond a reasonable doubt that the senior officer of a corporation (a senior officer of a corporation is defined as someone who sets policy or manages an important part of the organization’s activities) acted in: (1) a criminally negligent manner (i.e., showed a wanton or reckless disregard for the lives or safety of other persons) which resulted in serious injury or death to a worker; or (2) had the requisite knowledge and intent by (i) acting within the scope of their authority to commit the offence; (ii) directing others to commit the offence; or (jjj) knowing the corporation or individual may commit an offence fails to take the measures to stop it.
• A breach of Section 217.1 of the Criminal Code can result in significant monetary fines for a corporation: a monetary penalty of $100,000 for a summary conviction and no monetary cap for a conviction on an indictable offence.

While the risk of being charged under the Criminal Code remains small, an employer can minimize this risk by proper due diligence. That is, ensuring the proper occupational health and safety policies and procedures are in place at your organization and known health and safety risks are remedied as soon as they come to the attention of the appropriate personnel.

If you have any questions regarding this article please do not hesitate to contact me at:
Simon R. Heath
Human Resources Workplace
Law/Labour Relations Group
Tel: 905.276.0402
E-mail: sheath@kmblaw.com

The comments in this newsletter are of a general nature and are not designed to replace professional advice in specific situations. If you would like extra copies of this newsletter, or you know of anyone who would be interested in joining our mailing list, please contact Cheryl Woolcott at (905) 276-9111.