Guest Author: Norm Keith, B.A.(Econ), J.D., LL.M. Mr. Keith is a leading management-side employment and labor lawyer, the author of 12 books, 8 of which deal with OHS, and is a senior partner at the law firm of KPMG Law LLP, and may be reached at: nkieth@kpmg.ca.
The enduring legal legacy of the Westray Mine disaster is the Bill C-45 amendment to the Criminal Code that established the new crime of Occupational Health and Safety (“OHS”) criminal negligence for individuals and organizations. Often referred to as the Westray Bill, it introduced a legal duty and accountability for corporate and individual persons to take “reasonable steps to prevent bodily harm” in the Criminal Code. R.S.C. 1985, c. C-46. This amendment allowed for the police to investigate and Crown Attorneys to prosecute employers, directors, officers, managers, and even workers if they breached their legal duty and a worker was injured in the course of their employment. Recent changes in Ontario and elsewhere in Canada have seen an increase in the use of the Westray Bill as an enforcement mechanism for safety violations. This article will review the background of the Westray Bill, the critical content of the Westray Bill, some of the reasons the law has rarely been enforced in the past, and why it appears the criminal offense of OHS Criminal Negligence is gaining traction and increased use across the country.
On May 9, 1992, twenty-six miners died at the Westray Mine in Pictou County, Nova Scotia, when an explosion and fire ripped through the underground coal mine. A failed criminal prosecution of two mine managers and the corporate mine owner, together with the withdrawal of 52 Occupational Health and Safety charges by the Nova Scotia safety regulator, were not the only legal consequences of that workplace tragedy. There was a highly publicized public inquiry that made a number of recommendations, including amendments to the Criminal Code. However, the Westray Bill took a long time to be passed into law.
On March 31, 2004, almost twelve years after the mining disaster, the Westray Bill became law. Now a corporate employer may be found guilty of OHS criminal negligence if one or more of its representative (i.e., employees) is criminally negligent, its senior officer failed to take reasonable safety measures, and there was a significant causal connection between the conduct and the death or bodily harm of an individual and the corporate failures. In other words, a corporate employer may now be charged and convicted for OHS criminal negligence causing injury or death from a workplace accident if it violates the legal duty in the Criminal Code.
That legal duty reads as follows:
“Everyone who undertakes, or has the 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 the work or task.”
The offense is further complicated for an organization by the legal test of whether a corporate defendant is a party to a negligence-based offense. In the Criminal Code, that provision is section 22.1. Section 22.1 has two elements that must be proven by the prosecutor, both of which must be proven beyond a reasonable doubt to convict a corporation of a negligence-based offense. First, a representative (and two or more representatives will be treated as a single representative for the purposes of this section) of the corporation must be a party to the offense. Second, a senior officer must have failed to prevent the representative from being party to the offense and in failing to do so, the senior officer must have departed markedly from a standard of conduct that is reasonable in the circumstances to prevent the representative from being party to the offense.
Senior officer is defined in s. 2 of the Code as a representative, meaning any director, partner, employee, member, agent, or contractor of a corporation who either creates corporate policy or is responsible for managing its implementation. The Westray Bill expanded corporate liability by eliminating the prosecution’s duty to prove that a person is a directing mind of the corporation responsible for creating corporate policy.
To prove that an accused corporation is guilty of OHS criminal negligence under s. 219 of the Code, the prosecution must prove beyond a reasonable doubt i) the identity of the representative who was criminally negligent, ii) that the accused had a legal duty to take reasonable steps to prevent bodily harm, and; iii) the accused showed a “wanton or reckless disregard for the lives or safety of others”.
Through the enactment of s. 217.1, the new legal duty to take reasonable steps to prevent harm to workers and any other person that is applicable to persons directing work. It also imposes a legal duty on those who either undertake or have authority to direct work. Directors, managers, and supervisors, as well as lower-level employees, including foremen and lead-hands, could all have to duty to take reasonable steps to prevent harm to others.
The prosecution also must prove beyond a reasonable doubt that there is a marked and substantial departure for a finding of criminal negligence. R. v. J.F., 2008 SCC 60. The requisite mental element in criminal negligence is the minimal intent of awareness of advertence to, or willful blindness to, the threat to the lives or safety of others. R. v. Waite, 1989 CanLII 104 (SCC). In addition to proving acts, or a failure to perform duties arising to the level of material and substantial departure, the prosecution must prove, pursuant to ss. 220 and 221 of the Code, there was a significant causal connection between the conduct and the death or bodily harm, respectively.
Some of the reasons the Westray Bill has been used infrequently may include the following. First, there has been limited training and awareness by police of the legislation and its importance. Since Canada has a hybrid policing model of a national police force, the RCMP, provincial police forces like the OPP, and local municipal police forces, there is little coordination and consistency in training on new laws such as the Westray Bill.
Second, around the same time that the Westray Bill was passed, there has been a growing role of OHS regulators in taking on a policing enforcement function in OHS regulatory enforcement. Many provinces, including Alberta, Ontario, and Nova Scotia (perhaps because it was where the Westray Mine disaster occurred), have increased the number of OHS inspectors and prosecutors (Ontario currently has 29 OHS prosecutors). Perhaps this greater emphasis on regulatory prosecution has eclipsed the passage of the Westray Bill.
Third, there continues to be no clear standard on what amounts to “reasonable steps to prevent bodily harm” in section 217.1 of the Criminal Code. In other words, police and Crown prosecutors have no standard or benchmark by which to assess the acts or omissions of workplace parties when a serious incident has occurred. In several Westray Bill cases I have been involved with, for example, the Crown prosecutors have pointed to provincial OHS regulations as the applicable standard. The problem with this approach is that either there is a parallel OHS prosecution – in which case the waters have been muddied on which prosecution takes precedence; or, if there is not a parallel OHS prosecution – the regulator with greater experience than the police has decided there is not prima facie violation of the standard.
This brings us to the recent trend of more police investigations and Westray Bill charges over the last year or two. We are seeing police often conduct a parallel investigation and Crown prosecutors lay criminal charges, especially in workplace fatalities. This trend appears to have three main explanations. First, the police and Crown prosecutors have received more training and, over time, have had more experience with the purpose and nature of the Westray Bill amendments to the Criminal Code. This has occurred not because the Westray Bill has established a legal duty regarding workplace safety alone but because the Westray Bill deals with the legal test for the prosecution, sentencing, and probationary orders for organizations, including corporate employers, for all criminal offenses. Therefore, when a corporation is investigated for fraud, money laundering, or tax fraud, those other provisions of the Westray Bill apply. Therefore, with more exposure through training and experience, the s. 217.1 legal duty has also been brought to the attention of law enforcement officials. Therefore, when a serious or fatal workplace injury occurs, the police now know that they need to look at the cause and circumstances more closely to rule out OHS criminal negligence.
Second, there is increased pressure from several sources on the police and Crown Prosecutors to act when a worker is seriously injured or killed at work to seek criminal charges. This started in the early years after the passage of the Westray Bill, with public advertisements by union leaders to charge companies and senior executives when a worker was fatally injured. Then various mainstream media started assigning reporters to cover these events more closely. Further advent of the omnipresent cell phone-camera revolution turned everyone into a ‘reporter’ and ‘videographer’ of workplace tragedies. Finally, family and friends of loved ones who were injured at work found stronger and louder voices to call for police investigations and criminal charges.
Third and finally, the social intolerance of workplace injuries and fatalities has grown over the last decade. Partially due to the first and second factors, in the writer’s opinion, employers who do not take ‘reasonable steps to prevent bodily harm’ to their workers are more open to serious criticism and demands for OHS criminal negligence charges than ever before. There is a low social awareness of the high commitment that many companies and executives have to their worker’s safety, but there is a high social awareness and outrage when a worker is injured at work. This phenomenon has also driven more police investigations and Westray Bill charges.
For OHS professionals and senior officers and directors, the follow-up question from the thesis of this article is, ‘What can we do to reduce corporate and criminal legal risk of being investigated and charged with OHS criminal negligence’? The full answer will be the subject of my next column. However, in the meantime, please give some thought to these three questions:
1. What value does your organization place on the health and safety of its employee’s assets?
2. When was the last time senior officers and directors received any meaningful OHS training?
3. Has your organization ever actively ‘stress tested’ its OHS management system through scenario analysis?
Think about those questions and stay tuned for my next article in OHS Canada.