Ontario’s first instance of criminal charges against a corporation under a recent federal law may be a signal authorities are taking a more aggressive approach to workplace safety following a recent public outcry.
This week, Millennium Crane Rentals Ltd. of Sault Ste. Marie, Ont., is to appear in court on charges of criminal negligence causing death following a fatal accident last spring.
The case followed controversy over the deaths of four workers at a Toronto work site on Christmas Eve. The charges are the result of Bill C-45, a 2004 federal law under which prosecutions have so far been few and far between.
“I can’t think of another workplace accident that has achieved such public attention,” Ryan Conlin, a partner at Stringer Brisbin Humphrey Management Lawyers, says of the Toronto case.
“Before these deaths, Bill C-45 had almost disappeared from the radar screen, but now employers will have to be aware that there may well be more police scrutiny of serious accidents in the workplace.”
Before the bill’s enactment six years ago, the courts could convict corporations of crimes only where the criminal acts or omissions were those of a “directing mind” or “alter ego” of the corporation. Jurisprudence limited “directing minds” to very senior employees with decision-making authority over policy matters.
Under Bill C-45, however, the conduct of senior officers and representatives can result in criminal liability for the corporation itself. Senior officers include anyone who sets policy or manages an important part of an organization.
The representatives category is even broader, embracing employees as far down the hierarchical line as lead hands and even non-employees such as agents and contractors. Bill C-45 also imposes a duty on anyone who “directs work” to take reasonable steps to prevent bodily harm to workers and the public.
The combined effect makes a corporation subject to charges of criminal negligence when a senior officer departs markedly from the standard of care required to ensure representatives don’t breach this new legal duty.
“Bill C-45 amended the Criminal Code to permit organizations, which include corporations, to be more readily charged and convicted of criminal negligence causing either death or bodily harm,” says Cheryl Edwards of Heenan Blaikie LLP.
The enactment of Bill C-45 prompted speculation about multiple and parallel charges under the Criminal Code and provincial occupational health and safety legislation. But those fears haven’t materialized.
“As of the end of 2009, there were only two post-Bill C-45 criminal prosecutions arising from workplace accidents in Canada,” Edwards says.
The first occurred in 2004, when police charged Domenic Fantini, a supervisor with Toronto-area Vista Construction, with criminal negligence causing death. They alleged Fantini had failed to “take reasonable steps to prevent bodily harm” after a worker died on his watch.
The Ontario Ministry of Labour also investigated the fatality, eventually charging Fantini with eight counts of failing to ensure compliance under the Occupational Health and Safety Act.
In March 2005, Fantini pleaded guilty to the charges under the health and safety act and received a $50,000 fine. In the meantime, the Crown withdrew the criminal negligence charges.
Then, in 2006, Quebec police charged Transpavé Inc. with criminal negligence causing death after a machine used to package cement blocks on palettes fatally crushed an employee. In 2008, the company pleaded guilty and paid a $110,000 fine.
Nevertheless, the paucity of prosecutions isn’t to say police involvement hasn’t become a regular feature of serious workplace accident investigations in Ontario.
“Police are on the scene and they are embarking on criminal negligence investigations but they tend to defer to provincial authorities,” Edwards says. “So far, it’s been clear that the police have other, more pressing fish to fry and it has become clear that they will prosecute only in outrageous cases.”
But public attention turned to the issue on Christmas Eve, when four workers fell to their deaths after scaffolding broke apart at a Toronto work site that had been subject to two earlier stop-work orders based on safety concerns.
The labour movement had already been pressing for increased prosecutions under Bill C-45. The Quebec Federation of Labour, for example, publicly denounced the Transpavé fine as inadequate.
More recently, Sid Ryan, president of the Ontario Federation of Labour, called for a criminal investigation into the Toronto deaths, something that could already be in the works.
“Criminal investigations take time, and no one can be sure whether one has occurred unless police lay criminal charges,” Edwards says.
The charges in the Sault Ste. Marie case, meanwhile, stem from an accident in which a mobile crane fell onto an excavation site last April and killed a worker. The Ministry of Labour also laid five charges under the Occupational Health and Safety Act.
While the incident predated the Toronto deaths, it’s noteworthy that police didn’t lay charges in the eight months between the two accidents but did so fairly quickly in the wake of the recent outcry.
As a result, employers should stay tuned. On the heels of the Christmas Eve incident, the provincial government announced a review of Ontario’s occupational health and safety system.
“The province made that decision very quickly, and there’s no doubt that the Toronto tragedy got the authorities moving,” Conlin says. “It’s premature to say whether there will be any changes, but the reality is that the structure of occupational health and safety in Ontario hasn’t really changed in a long time.”