Use it or lose itWritten by Mari-Len De Guzman 07 April 2010
Last February, the Canadian health and safety community saw something it has not seen in a relatively long time (since 2007, to be more precise): a company charged with criminal negligence under Bill C-45 following a workplace death.
The Sault Ste. Marie Police Service charged Millennium Crane Rentals, as well as a crane owner, David Brian Selvers, and a crane operator, Anthony Vanderloo, with criminal negligence causing death. It was reported that a worker, James Vecchio, was fatally injured after a crane fell into the excavation where he was working, pinning him down. He was then rushed to a nearby hospital where he later died.
The Ministry of Labour also laid charges under the Ontario Occupational Health and Safety Act, but it’s the Criminal Code charge that got the attention of several news outlets. Why? Because after five-and-a-half years since Bill C-45 was passed into law, we only know of three cases (including the above) filed under this Criminal Code amendment. And I think it’s safe to say that’s not because there aren’t that many workplace deaths occurring across Canada.
According to a 2006 report by the Centre for the Study of Living Standards, 1,097 workplace fatalities occurred in 2005, up by 18 per cent from the previous year, and by 45 per cent since 1993. This translates to nearly five work-related deaths per day across the country, the report further noted. It’s hard to believe none of them would cause a Crown attorney or the police to consider pursuing criminal investigation.
In chatting with lawyer Norm Keith, a partner at Gowlings and expert in OHS legislation, he seems to be under the impression that there’s a “real lack of either understanding or commitment by police to work with regulators who have the expertise to investigate health and safety incidents and fatalities.”
Even the Ministry of Labour did not want to comment on this seeming lack of interest to pursue criminal charges for OHS offences by Crown attorneys. I recently asked Ontario Labour Minister Peter Fonseca what he thought of this. He simply responded that it would be “inappropriate to comment as Ministry of Labour” as this matter falls under the attorney general.
I am neither advocating nor opposing criminal prosecution as a way to prevent workplace injuries. But the whole point behind Bill C-45 was to provide a deterrent and additional motivation for employers to take the necessary precautions to ensure that the workplace is safe, and for employees to be fully aware of their responsibilities for their and their co-workers’ safety.
If the political will to enforce the law is simply not there, how can we expect employers and employees to stay committed to both the letter and the spirit of the law?
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Published in Legal Columns