BY JEAN SORENSEN – The launch of a criminal investigation into the death of a construction worker crushed to death under a fallen concrete wall is signaling changes in how B.C. investigates serious injury and death in the workplace.
Burnaby RCMP are looking into the death of pipe layer, Jeffrey Caron, who died on a Burnaby worksite on Oct. 11, 2012.
“It is confirmed that we have an on-going investigation,” said Staff Sgt. Major John Buis of the Burnaby detachment, which received the file for review from WorkSafeBC on March 18.
The RCMP won’t comment on the investigation, but indicated it would carry out its own independent inquiry of the construction site death that took the life of 28-year-old Caron and severely injured a second employee Thomas Richer.
Dave Baspaly, president of the Council of Construction Associations, said historically there were definitive lines between RCMP and WorkSafeBC investigations, but over time those jurisdictions have become less clear.
He said he believes that WorkSafeBC turning the Caron investigation over to the RCMP is an attempt to clarify the division between the two entities.
This includes which authority investigates incidents and under what circumstances.
“I think that is exactly what they are doing – and I have it on good authority,” he said.
However, Baspaly also said that employers have concerns that they will be subjected to two investigations and when there is an incident that is quasi-legal, his members would prefer it go to WorkSafeBC investigators, who have industry knowledge.
“Our members will be watching to see what comes out the other side,” he said.
“And, also what are the triggers.”
The RCMP investigation has drawn support from NDP labor critic Harry Bains.
“It is good they are taking a second look at the incident,” he said.
WorkSafeBC was criticized recently for its investigation into the Babine Forest Products explosion and fire, which killed two workers and injured 19.
The B.C Justice Department announced that no criminal charges would be laid after the evidence and information gathered by WorkSafeBC investigators was not done in a way that could be brought into court.
“You don’t want to prejudice the investigation,” said Bains about the RCMP investigation now in process.
“But, hopefully they will do a thorough review and if there is someone responsible and negligent then they should pay the consequences.”
The Canadian Centre for Occupational Health and Safety in an overview of Bill C-45, which holds employers accountable for worker safety, underscores the division between provincial occupational health and safety laws and criminal code laws.
“The criminal code is a very different set of rules and should not be confused with “regular” occupational health and safety laws (OH&S) and how they are enforced,” it stated.
The two pieces of legislation operate independently but each with penalties that can be taken into court, although courts when enforcing Bill C-45 (which became Section 217.1 under the Criminal Code of Canada) are required to consider any penalties imposed by other jurisdictions.
Bill C-45 as criminal law is only used for the most serious offenses involving grave moral fault.
“I think our members would agree with that,” Baspaly said.
Section 217.1 of the criminal code relates to ‘duties tending to preservation of life’ and sets out obligations of employers, guardians, medical practitioners and others, who have a duty of care to others.
Section 217.1 makes employers, organizations and those directing individuals on a job site responsible for the prevention of bodily harm arising from the work.
It imposes criminal liability on the organization and its representatives for negligence.
Bains said that the problem that exists today in B.C. is that incidents are investigated with a view towards prevention, rather than accountability, and this should change.
“It is more attitude than direction,” Bains said about the RCMP, WorkSafeBC, and the Crown.
Bains said he wants to change that view, put more accountability into the workplace and give investigators the tools to investigate not only cause but if necessary, gather evidence for any litigation that may arise.
On April 28, he introduced a private members bill, the Workplace Accountability Act, developed with the support of the B.C. and Yukon Territory Building and Construction Trades Council.
Bains’ bill, which he hopes that all members of the legislature will support, calls for key changes.
“There should be a dedicated crown prosecutor, who is an expert in workplace fatalities and knows how to proceed with criminal charges,” he said.
He added that police and WorkSafeBC investigators should be better trained to examine incidents and that they should look for any criminal negligence that may have occurred.
He believes that all workplace fatalities should be thoroughly investigated by police.
Bill C-45 court cases to date
There have been eight cases in Canada, where charges have been laid using Bill C-45, one of which has been in B.C. They are:
- February 11, 2010. Sault St. Marie police charged the owner of Millennium Crane Rentals and the crane operator with criminal negligence causing death after one of its cranes toppled into an excavation hole and killed a municipal worker. The crown announced the charges were later dropped, but the company was fined $70,000 under the Ontario Occupational Health and Safety Act.
- December 24, 2009, four workers were killed and one was seriously injured at a Toronto construction site, when swing stage scaffolding collapsed. Metron Construction and three corporate officers were charged with criminal negligence and fined $200,000 plus a victim surcharge of $30,000.
Metron’s owner was personally fined $90,000 plus a victim surcharge of $22,500 under the Ontario Occupational Health and Safety Act. A total of 61 charges were laid. The fines were appealed by the company, but the court of appeal tripled the fine against Metron, raising it to $750,000 for criminal negligence and calling the original fine unfit.
One supervisor was also named in the case and faced charges of criminal negligence causing death.
• March 17, 2008. Paving company Transpave was charged and convicted of criminal negligence and fined $100,000 in the death of an employee, plus a $10,000 victim surcharge.
• May 17, 2007. During an incident at a Quebec auto dealership, a 22-year-old employee was using a makeshift pump, which caught fire. He sustained severe burns and criminal negligence charges were laid against the owner and service manager Mark Hritchuk, who pleaded guilty to causing bodily harm.
- October 13, 2006. A train struck a maintenance vehicle, killing one worker and injuring three others. Two employees of Quebec-Cartier were charged with criminal negligence causing death and three counts of criminal negligence causing bodily harm.
The corporation wasn’t charged, but in November 2010, a Quebec Court acquitted both men on all counts, finding the incident stemmed from error due to a company culture of tolerance of unsafe practices and deficient training, rather than a wanton act of criminal negligence.
- June 12, 2006. A landscaper was crushed to death when the backhoe his employer was driving failed to stop, pinning him to a wall. The 30-year-old backhoe had not been maintained and had no braking capacity.
In September 2010, the employer was convicted of criminal negligence causing death and given a two year conditional sentence to be served in the community.
- March 22, 2006. B.C. Ferries vessel Queen of the North sank after going off course and running aground killing two passengers. The ferry navigation officer was charged with two counts of criminal negligence causing death. On June 24, 2013 he was sentenced to four years in prison and banned from operating a vessel for 10 years. The sentence is under appeal.
- April 19, 2004. A Newmarket, Ontario worker was killed after the ground around him collapsed while digging a ditch at a residential construction site. The construction site supervisor was charged under Section 217.1 of the Criminal Code of Canada.
After a plea bargain, the charges were to be dropped in exchange for the supervisor agreeing to plead guilty to three of eight charges under the Ontario Occupational Health and Safety Act and a pay fine of $50,000.