Bill C-45 was enacted after the comparable but larger 1992 Westray mine tragedy claimed the lives of twenty-six Nova Scotia miners. It places a very specific duty on employers to take reasonable steps to protect their employees and others from injuries arising from workplace accidents. If the employer is criminally negligent in meeting its duty and the failures cause death or bodily harm, the employer is exposed to conviction under the Criminal Code for criminal negligence causing death or bodily harm. These are serious offences, punishable by life imprisonment — when a death has occurred — and unlimited fines.
Any organization is primarily liable under Bill C-45 if the reckless or wanton act or omission of an employee causes death or bodily harm, whether to himself or others. But the organization can only be convicted if the senior executives responsible for the work of that employee depart markedly and substantially from the standard of care which could be reasonably expected of them to protect their employees and others in the workplace.
The deaths of the four Metron workers on Christmas Eve 2009 received significant press coverage. Part of a group of six, their suspended work platform, known as a swing stage, snapped in half. Four fell 13 stories to their death. One managed to hold on briefly before falling as well. He lived, but suffered serious spine and leg injuries. The sixth had reportedly attached his fall arrest harness to the building before stepping out onto the platform and was rescued without injury.
At this point, we do not know what may have caused the platform to fail. From the press reports, it appears there was some concern held by the employees about the platform’s structural integrity, and the MOL had conducted inspections of the work site issuing remedial and stop work orders to the employers for the safety deficiencies it had observed. But was it the failure of the platform or the failure to attach fall arrest equipment that was the cause of the deaths and the serious injury?
The workplace safety regulations would have required all of the workers to be connected to the building by fall arrest equipment before they stepped out onto the platform. Why? Workers can slip off platforms like swing shifts, and self-evidently, swing shifts can fail.
If the press reports are correct, the uninjured survivor was saved by his fall arrest equipment. Significantly, at least one press report indicates that the deceased and injured had their equipment on but had apparently failed to connect it to the building before stepping onto the platform.
For many of us, a crime is thought to be an intentional or at least reckless act that causes harm. But for many criminal offences this popular conception simply is no longer correct. Our judges — particularly in the Supreme Court of Canada — have consistently held that negligence is the sufficient level of fault required for many criminal offences. This means that many crimes no longer require a so called positive state of mind wherein the accused intended the consequences of his actions or was reckless as to whether those consequences occurred or not. Instead, judges and juries can measure the conduct of the accused to assess its reasonableness in the circumstances.
Effectively, they must ask themselves: Would a reasonable person have acted in the same manner? And then, if the answer is negative: Is the failure to act reasonably just mere or “marked and substantial”?
For corporations and their executives, the dilution of the fault requirement is very significant. Historically, in order to obtain a conviction for criminal negligence the Crown needed to prove advertence or recklessness; that the accused understood his acts or omissions were dangerous to others but carried on regardless. Negligence is a much lower standard and opens the door to far more criminal prosecutions of corporations and their executives. Practically, it is easier to obtain convictions if all the Crown needs to do is prove that the relevant executive’s action or inaction was markedly and substantially unreasonable in the circumstances as opposed to advertent or reckless.
From the perspective of the administration of justice, the new approach to fault also has serious implications for the future. Most Canadian jurisdictions have highly developed legislation and regulations which prescribe in strict and specific detail the safety requirements for many types of workplace scenarios. If employers fail to meet the requirements that apply to their workplace, they can be ordered to bring the workplace into compliance. They can also be prosecuted for their non-compliance, and, if they are a corporation, subjected to six-figure fines on conviction. If the non-compliance has resulted in a worker injury or death, offenders are usually subjected to higher fines. Individual executive offenders may also be jailed.
These are regulatory prosecutions which do not leave the offender with a criminal record and its ramifications. The Supreme Court has held that the fault requirement for a conviction is also negligence, but just a departure from the standard of care is required as opposed to the criminal “marked and substantial” failure.
What is the difference between the two? There is no case law, at least yet, to help in that regard. But C-45 can only be applied if the “marked and substantial” failure has resulted in bodily harm and death. Therein may be the answer: Practically, but erroneously, “marked and substantial” may be measured by the damage caused as opposed to the seriousness of the failure. Without some guidance from the courts on distinguishing between fault levels, that is exactly the type of analytical error we risk at the expense of charging those who failed to meet the objective standard of care, but not criminally. It is in error because it punishes consequences, not blameworthy behaviour and consequences.
Metron could very well be a good example. We do not know the evidence at this point. But if the facts are that Metron provided fall arrest equipment to the employees and trained them on its use, should the company and its executives be charged and exposed to the risk of criminal conviction because the employees failed to follow their training?
The Courts, at least in Ontario, have said that employers are liable under the workplace safety legislation for the careless acts of their employees. But those findings are all within the context of regulatory prosecutions, serious enough in their own right, but without the stigma and ramifications of a criminal prosecution.
All workplace accidents are tragedies, and in hindsight, can usually be seen as avoidable. Metron represents an important opportunity for the courts to sort out the meaning and requirements of regulatory and criminal negligence within the context of a strictly regulated work environment.
Bruce McMeekin is a partner at Toronto-based law firm Miller Thomson LLP.