Keep Workers Safe Or Face Fines And Prison

The decision in the Transpave case, the first criminal conviction under Bill C-45, delivers a clear message to employers.

BY: SIMON FRIDLYAND

A Quebec company was fined $100,000 plus an additional victim surcharge of $10,000 in March 2008 in relation to the death of one of its employees, making it the first organization to be convicted of Occupational Health and Safety (OHS) criminal negligence causing death, under a relatively new section of the federal Criminal Code. The conviction occurred under section 737 of the Code, a law created under what is commonly known as Bill C-45.

Twenty-three year old Steve L'Écuyer was fatally crushed in October, 2005, when he attempted to clear a jam in one of the machines at Transpave Inc., a manufacturer in Quebec. An investigation led by Quebec's Health and Safety Board and the provincial police resulted in charges being laid.

The company was charged with criminal negligence under Bill C-45 for having allowed L'Écuyer to operate the machine with its safety system deactivated and not being compliant.

Government investigators determined that:

• The light curtain guarding system was disabled by a simple pen cap at the time of the accident.

• Investigators determined that the system was disabled for the majority of the time in 2004 and 2005. The engineer who examined the machine concluded that it was very easy to bypass the light curtain system.

• The company did not provide adequate machine safety and hazard awareness training. This lack of training on critical safety issues resulted in Mr. L'Écuyer not knowing the dangers associated with entering the area and manually moving the blocks or stones.

• The company did not implement any specific work procedure that adequately addressed the hazards associated with moving the blocks or stones.

• The company did not have any type of inspection program to confirm whether the guarding system was operational.

• Investigators concluded that a mem- ber of management had noted in the past that the light curtain guarding system was disabled but did not take any action to address the situation.

• The training system for new operators on the machine was not evaluated or reviewed by management.

Transpave pled guilty to the charge on December 7, 2007.

Bill C-45 was created in response to the 1992 Westray coal mine disaster in which 26 miners lost their lives in a tragic mine explosion and collapse. It was widely concluded that the deaths were a result of the mining company's negligence.

"The Criminal Code was amended on March 31, 2004, to establish a new positive duty on individuals and organizations to take 'reasonable steps to prevent bodily harm' to workers, the public, and others involved in workplace activity," according to Norm Keith, B. A., LL. B., CRSP, a lawyer with Gowlings, Canada's largest law firm. "Bill C-45 amendments to the Criminal Code also significantly change the threshold for establishing guilt for an organization, including a corporation."

Through Bill C-45, the government acted on its stated view that "the criminal law can provide an important additional level of deterrence if effectively targeted at and enforced against companies and individuals that show a reckless disregard for the safety of workers and the public".

The Bill established new types of offences for safety breaches and imposed serious penalties for violations that result in injury or death. Corporate defendants face a maximum fine of $100,000 for a summary offence and no maximum for an indictable offence. Corporate representatives and senior officers face fines and imprisonment for up to 25 years. This is in addition to any fine or imprisonment that may be levied under the applicable provincial health and safety legislation.

Crimes that embody an element of intent or recklessness may be attributed to a corporation where a senior officer is party to the offence or where a senior officer has knowledge of the commission of the offence and fails to take all reasonable steps to stop it. The acts or omissions must be undertaken, at least in part, for the benefit of the corporation (in other words, by not ensuring that the equipment was safe by not spending money on equipment compliance and retrofit).

Due diligence

One needs to understand what constitutes safe equipment or a process. Safe equipment means equipment compliant to the applicable codes and standards.

Section 124 of the Criminal Code states: "Every employer shall ensure that the safety and health at work of every person employed by the employer is protected." Section 125 of the Code relates to the 'specific duty'. Along with regulations, these provisions provide the detailed framework of specific standards that every employer must meet in the context of their particular area of work. Compliance to particular standards represents due diligence. Therefore a due diligence defence is a practical approach in Bill C-45-related defenses. Here is a description of what constitutes due diligence:

• Identify all actual and potential occupational hazards applicable to the offence (facility audit).

• Assess the risk of exposure of workers to hazards identified (hazard assessment).

• Eliminate hazards or implement controls, where necessary, to minimize the risk of exposure to hazards (equipment upgrades).

• Communicate hazards, risks and controls to workers, joint health and safety committees (JHSC) and management.

• Monitor workers, work practices and the workplace (equipment, machinery and facilities).

• Correct unsafe work practices and remedy hazardous situations.

• Discipline workers/supervisors if they were in violation of their legal duties or corporate OHS policies or procedures.

• Document all of the above steps and actions.

Although not an insignificant sum, the fine in the Transpave case could have been much larger. The moderate figure reflects the fact that following the accident, Transpave spent in excess of $750,000 on safety improvements. As well, Transpave was a relatively small company (employing about 100 workers). The penalty of $110,000 in total was sufficient, in the eye of the judge, to have a meaningful economic impact on the company.

A larger organization would likely have received a much higher fine designed to ensure adequate punishment.

The decision in the Transpave case delivers a message to employers: Fail to provide a safe workplace and you may face severe sanctions through the criminal law.

Simon Fridlyand, P. Eng., is president of S. A. F. E. Engineering Inc., a Toronto-based company specializing in industrial health and safety issues and PSR compliance. For more information, visit www.safeengineering.ca.

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