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May 6th, 2004:

Workplace safety violations now a criminal offence

By Yosie Saint-Cyr, Editor at HRinfodesk

May 06, 2004

 

 

New occupational health and safety duties and criminal liabilities have been added to the Criminal Code that affect both individuals and organizations in Canada. Since March 31, 2004, both individuals and organizations are under increased obligation to take reasonable steps to protect workers and the public; they must also ensure accountability for a safe work environment. In this next article learn about the potential penalties you can face under the new Code provisions... also learn steps you can take to avoid violating the new rules!


New occupational health and safety duties and criminal liabilities have been added to the Criminal Code that affect both individuals and organizations in Canada. Since March 31, 2004, both individuals and organizations are under increased obligation to take reasonable steps to protect workers and the public; they must also ensure accountability for a safe work environment.  A wanton and reckless disregard for the lives and safety of others may constitute various offences, including criminal negligence causing bodily harm or criminal negligence causing death. These new provisions are in response to the May 1992 explosion at the Westray mine in Nova Scotia that resulted in the tragic death of 26 miners. Inquiries into the disaster revealed not just incompetence and mismanagement, but also deceit and deliberate cover-ups. Despite this intentional disregard for health and safety laws, no one was held criminally liable for the deaths.
 

The government has stated that the new Criminal Code offences make it easier for companies to face criminal-negligence charges if they fail to protect the safety of workers. Previously, corporations could only be found guilty of a criminal act if the “directing mind” of the corporation committed the prohibited act and had the necessary intent—or was reckless in their behaviour. With the new provisions, the government has extended responsibility for public and employee safety to lower-level supervisors, making the law more reflective of the modern corporate reality. Some current liability laws date back to the 19th century, when top management or the directing mind (senior executive) of the company often oversaw all of a company's day-to-day operations. Now, the new legislation takes into account the complex structure of modern companies, where middle and lower level management often oversee daily operations and even set policies and directives.

 

The Criminal Code now states that “Every one who undertakes, or has 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.”

 

Neena Gupta, a lawyer at Goodman and Carr has stated that: “This places the focus on the function of the individual and not merely their title. Accordingly, a foreman, supervisor or office manager could find themselves personally charged with a crime, if they recklessly disregarded the bodily safety of a co-worker. The organization will face liability based on mere association with their offending representative. In addition, an organization will be a party to a negligence offence if, while acting within the scope of their authority, one of its representatives is a party to an offence.”
 

In the case of offences that require the Crown to prove a higher degree of fault than negligence, the organization will be made a party to the offence of their representative where: there was an intent to benefit the organization and one of the senior officers of the organization, acting within their authority was a party to the offence; or did not act to stop it.

 

A “senior officer” is defined as a representative of the company who plays an important role in policy decisions. Again, it should be noted that this definition does not look to the title of the person but rather looks at their actual duties. However, by virtue of their positions, the directors, CEO, and CFO of a corporation are automatically considered “senior officers”.

 

Potential penalties
 

The potential penalties under the new Criminal Code provisions include a fine of up to $100,000 against organizations for summary convictions (less serious offences). For convictions by indictment (the most serious offences), there is no statutory limit on the fine that can be imposed on an organization. Individuals convicted under the new provisions would be subject to penalties reflecting the nature of the offence, which would include life imprisonment for negligence causing death.

 

What does this mean for employers and HR professionals?
 

With the potential for life imprisonment and large fines for a conviction of criminal negligence resulting in death, the implications are very serious.
 

Although most employers are committed to their health and safety program and protect their employees’ welfare, organizational culture and behaviour directly impacts the effectiveness of an occupational health and safety system. It may be time for employers and HR to revisit their health and safety plans (and review health and safety legislation) to ensure that it is functioning properly, meets the guidelines and requirements of their industry or sector, meets their due diligence requirement and that employees as well as management are following and applying the rules consistently.
 

To avoid violating these rules, Neena Gupta suggests that organizations take these precautionary steps:

  • Allocate appropriate resources to health and safety initiatives and programs;
     
  • Develop health and safety policies and procedures ;
     
  • Conduct regular health and safety audits that  identify and help resolve potential health and safety violations as they become apparent;
     
  • Train all management and employees in health and safety;
     
  • Enforce the health and safety policies and procedures by acting at the first sign of violations, and where appropriate, discipline those who violate them;
     
  • Ensure management is appraised of all health and safety violations and incidents; and
     
  • Keep detailed records of all violations and incident reports and the actions taken to deal with them.
     

 

In addition:

  • Ensure you have conducted a hazard assessment of your workplace to determine potential health and safety risks, including the nature and extent of public access to the workplace;
     
  • Implement physical measures which communicate these risks, and take reasonable steps to protect your employees and the public;
     
  • Provide occupational health and safety education and training to all employees, including senior and lower level management, as well as supervisors who focus on legislative obligations, key regulatory requirements for your industry or sector, including due diligence;

     

Occupational health and safety education and training —A brief overview

Within Ontario, apart from the new Criminal Code offences related to workplace health and safety, the two major pieces of legislation are the Occupational Health and Safety Act (OHSA), and the Environmental Protection Act (EPA). These two Acts are significant in that they place specific, personal and legal duties on individuals (workers, supervisors and employers). These are also personal duties that cannot be delegated, and if breached, can lead to personal fines or imprisonment.
 

It is therefore essential that workplace parties, particularly those with management or supervisory responsibilities be aware of their obligations and duties under this legislation and that they ensure that management systems are in place which will ensure compliance with the legislation and enable them to establish the basis for a defense of "due diligence".  There are approximately 33 Regulations under the Occupational Health and Safety Act. Some are specific to industry or sectors and others relate to Workplace Hazardous Materials Information System (WHMIS), Training Requirements for Certain Skill Sets and Trades, and Joint Health and Safety Committees.
 

The Occupational Health and Safety Act provides the framework within which employers must manage safety in the workplace. It gives broad powers to the government to make regulations and to inspectors to issue orders with respect to the protection of the health and safety of workers in virtually every industry and workplace in the province. The legislation specifies the rights and obligations of workers, supervisors, employers, and corporate officers and directors. The Act also specifies penalties for both individuals and corporations convicted of offenses under the Act.
 

The Environmental Protection Act (EPA) defines and imposes specific duties on anyone causing a spill or having control of a pollutant spilled into the natural environment. This is particularly relevant to those parts of an organization such as science and physical plant where chemicals may be discharged into the water, or air. The EPA provides the same obligations imposed on corporations and their officers and directors under the OHSA, i.e. to "take all reasonable care to ensure that the corporation complies with the Act and regulations".

 

By Yosie Saint-Cyr, Editor at HRinfodesk

©1999-2004 First Reference

 


Written By: Yosie Saint-Cyr, Editor at HRinfodesk
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