By Norm Keith
In 2004, Bill C-45 (also known as the Westray Bill) amended the Criminal Code imposing an OHS duty on individuals, organizations and their decision-makers across Canada. Bill C-45, among other changes, established workplace negligence as a criminal offence by adding a new duty on organizations and individuals to take “reasonable steps” to prevent bodily harm and death. After a significant dormant period, there have recently been a number of new occupational health and safety criminal negligence charges being laid against individuals and corporations across Canada — the most publicized being those laid in connection with the deaths of four workers who fell from a faulty swing stage on Christmas Eve 2009.
Prior to this Québec Court decision, no other OHS criminal negligence case had proceeded to trial. The employee, in this case, was killed when a backhoe, driven by his employer, failed to brake and pinned him against a wall.
The machinery in question was purchased in 1976 and had not undergone any regular maintenance since that time. The mechanical inspection after the incident found that the machine had absolutely no braking capacity in the front two wheels, no brake fluid in the reservoir, and an all-over braking capacity of less than 30 per cent. The mechanical inspection also uncovered 14 additional major issues with the machine including the fact that the horn, brake lights, parking brake and brake pressure gauge were not functional. The defendant admitted that a certified mechanic had not inspected the backhoe for at least five years, and that he had failed to check the brake fluid in the previous year because the reservoir cap was broken.
The defendant advised the court that he did not contest the mechanical faults of the backhoe, but that he did not have the requisite mens rea, or intent, required to be found guilty of criminal negligence. He argued he was not aware of the braking issue because he had not witnessed any leaking fluid, nor did he notice reduced braking capacity in the time leading up to the accident. The defendant also argued that at the time of the accident, there were no regulations in place in Québec requiring regularly scheduled maintenance for heavy equipment.
The court held that the intentions of Scrocca had no place in the analysis. The court held that in criminal negligence cases there does not have to be a positive intention for the result of the act. The court also found that there was a clear breach of the duty of care imposed on an employer under s.217.1 of the Code — the duty to take reasonable steps to prevent bodily harm to a worker. As the owner of the vehicle, Scrocca had a duty to ensure that the vehicle was maintained in a safe condition. The backhoe had been used for 30 years with essentially no mechanical maintenance. The court found that in failing to maintain the vehicle, the defendant placed himself in a position where he could not be sure of its mechanical fitness. As a result, he would not know the risks associated with its use, which recklessly put the lives and safety of his workers in danger.
The court held that the defendant’s argument that the machine was brought to a certified mechanic when there was a major problem, was not sufficient to meet the duty. Furthermore, the court held that the defendant’s reasons for his failure to perform regular maintenance on the backhoe — that is, that he did not observe any issues with the vehicle — was indefensible and unacceptable. The trial judge held that a prudent person would make sure that the equipment was looked over at least annually and would not fail to check the brake fluid just because the valve was broken.
After a joint submission from the Crown and the defendant on sentence, the court imposed a conditional sentence of imprisonment of two years less a day. The sentence will be served in the community with conditions, including a curfew.
This case is noteworthy since it is the first trial decision under Bill C-45 and serves to remind employers, supervisors, officers and directors that the OHS criminal negligence provisions carry a real risk of accountability.
Employers must be aware that neglect of OHS duties and s. 217.1 of the Criminal Code can lead to unlimited fines for the corporation and possible fines and jail time for individuals. Organizations must be proactive in assessing and managing workplace risk. Unfortunately, organizations and their senior officers will have to continue to wait for guidance from the court with respect to their duties and responsibilities under these provisions.
Gowlings offers a seminar titled, Bill C-45 Liability: How to Protect Organizations and Senior Officers. The seminar was held on February 17 in Toronto and February 22 in Calgary. It’s scheduled again for March 24 in Ottawa, March 29 in Thunder Bay and March 30 in Sudbury. For more information, please contact Aneta Paczkowska at 416-862-3580 or firstname.lastname@example.org, or visit our website at www.gowlings.com/ohslaw.
Norm Keith, an OHS lawyer and consultant, is a partner at Fasken in Toronto. He can be reached at (416) 868-7824 or email@example.com
, or visit www.ehslaw.ca
for more information.