In the 16 years since the Westray bill amended Canada’s Criminal Code to establish new legal duties for corporations and their representatives to ensure workplace safety, there have been only five cases where criminal charges were laid in the construction sector and only three that produced convictions.
After reviewing the decision in the Lafarge workplace fatality case issued last year in Ontario, prominent building trades executive Patrick Dillon has suggested it might be time to revisit the option of criminal charges in appropriate cases.
Lafarge, a Mississauga-based cement company, was convicted of workplace safety violations under Ontario’s Occupational Health and Safety Act (OHSA) for the fourth time since 2003 for its role in an incident in which a worker fell 30 feet from a corroded walkway in a decommissioned Lafarge plant and later died in hospital.
Three of Lafarge’s four convictions have involved fatalities.
The judge sentenced Lafarge to a fine of only $400,000, as recommended in a joint submission by the Crown and the defendant but wrote that in future cases of multiple workplace safety convictions, consideration should be given to escalating fines and onerous parole conditions.
The case was examined in a legal periodical published this month.
“It was very troubling to read the recent court decision Ontario (Ministry of Labour) v. Lafarge Canada Inc.,” said Dillon, business manager of the Provincial Building and Construction Trades Council of Ontario, in a statement issued to the Daily Commercial News.
“One way to improve the system as it relates to workplace deaths, especially for repeat offenders, is to initiate criminal prosecutions. The Building Trades’ objective is not driven by wanting to see employers in jail but by ensuring that workers return home safely and not in a body bag.”
The 2004 Bill C-45 amendments to the Criminal Code, known as the Westray Bill after the 1992 Westray mine explosion in Nova Scotia that killed 26 workers, gave the Crown another tool to punish employers. Corporate criminal liability can stem from cases where a senior officer of the corporation is aware of the acts that constitute criminal conduct, explained a former Ontario prosecuting attorney speaking on background. It is based on the knowledge and participation of the senior officer that the criminal conduct is imputed to the corporation.
Section 217.1 of the Criminal Code states, “Every one 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.”
Toronto lawyer Fredrick Schumann of Stockwoods LPP said criminal charges would be considered in “really egregious cases.” In determining how to proceed, consideration will be given to whether the negligence was attributable to individuals on the worksite or was based on corporate policy. The company’s previous record will also be considered as will how dangerous the conduct was.
The Canadian Centre for Occupational Health and Safety website documents cases where criminal charges were laid pursuant to the Westray rules.
The most notorious case of successful prosecution of a construction employer was the Toronto swing stage incident. On Dec. 24, 2009 four workers were killed and one seriously injured when the swing stage scaffolding they were on collapsed. Metron Construction and three corporate officers were charged with criminal negligence and fined $200,000. There were also convictions under the OHSA.
In September 2013, the Appeal court tripled the fine against Metron, raising it to $750,000 for criminal negligence. In 2016, a supervisor was charged and convicted under the Criminal Code and sentenced to 3.5 years in prison.
On March 17, 2008, Transpave, a Quebec paving company, was convicted of criminal negligence and fined $100,000 in the death of an employee who was crushed by a machine used to package cement blocks on pallets.
On Jun 12, 2006 a Quebec landscape worker was crushed to death when the backhoe his employer was driving failed to stop, pinning the employee to a wall. The court found the backhoe had not received any regular maintenance in the 30 years since it was purchased, and it had no braking capacity. In 2010, the employer was convicted of criminal negligence causing death and given a two-year conditional sentence.
In two other Ontario construction workplace cases — the 2010 Millennium Crane incident in Sault Ste Marie in which a crane operator died when his crane fell into an excavation hole, and a 2004 case in Newmarket in which a worker was killed after the ground on which he was digging collapsed at a residential build — convictions under the OHSA were obtained after the Crown dropped criminal charges.
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