Westray Bill is ‘useless’ says OHS legal expert

Legislation doesn't go far enough in holding corporations accountable

Westray Bill is ‘useless’ says OHS legal expert

The Westray Bill is typically regarded as a landmark piece of legislation, supposed to modernize our approach to criminal liability and hold corporations more accountable. However, some in the safety community are calling into question how useful the Bill actually is.

Almost two decades after it became law in 2004, the Bill is rarely being enforced. “It isn’t acting as much of a deterrent, and I don’t think it was ever meant to be,” says Harry Glasbeek, Professor Emeritus, Osgoode Hall Law School. He says that the Westray Bill is “useless” in terms of outcomes, and that there have only been a handful of prosecutions, even though it could have been used in many cases.

He also points out that it took 12 years for the Bill to finally be enacted and promulgated (as a reminder, 26 workers at the Westray Mine in Nova Scotia were killed in 1992 after a lethal build of methane gas triggered an underground firestorm). Despite the hoopla around the Westray Bill, there are such slim chances for corporations to actually be convicted.

Glasbeek has extensively written and spoken about the Westray mine disaster (alongside colleague Eric Tucker). In their writing, the pair situate the disaster in an economic context, with a view that in cases such as Westray, the corporation is at fault and should be held more accountable than currently.

The Bill is engineered in way to not adequately hold corporations liable, he says. Essentially, the legislation has been built to not highlight the fact that the system itself is an issue. The ultimate problem in the workplace, he says, is “profit at any cost” which ties directly as one of the causes of workplace harm.

Glasbeek has always had a natural sympathy for workers, but really developed his interest in workplace health and safety when he was teaching at Osgoode Hall Law School in Toronto. He began his scholarly career interested in labour law, which eventually pushed him towards occupational health and safety.

“One day in class I was doing a little section on occupational health and safety, and I remember crying out in anguish,” says Glasbeek, affected by workplace behaviours which he perceived as criminal conduct. He wrote a paper in 1979 with one of his students, Susan Rowland, entitled ‘Are Injuring and Killing at Work Crimes?’

Though the paper gained traction, Glasbeek says that after two or three years of being in publication, nothing had changed. “I realized that the problem might be that very often employers are corporations. And it’s very hard to use normal legal ideas with corporations.”

Though, perhaps, no workplace is inherently free of risk, many occupational injuries and fatalities are avoidable. And while most corporations certainly do not set out to maim or kill workers, financial concerns often trump safety. “The system is operating on the basis that we must accept a certain amount of injury and death in order to make money. And we do that quite deliberately,” he says. Occupational regulations allow for reasonable harm.

We have come to accept that loss or injury is an inherent part of doing business. But does this not devalue the life of the worker? Why is it that we are more permissible of corporations injuring or killing workers? Why is it, when it comes to injuries and fatalities, that corporates have a special sphere of law that only applies to them, asks Glasbeek, “that is not as vicious, not as punitive, not as vengeful?”

Lauded at the time as a landmark piece of legislation, Glasbeek says that actually it doesn’t really have teeth to it. It’s more performative than anything else. And this, he says, is because the system is inherently built on worker exploitation, and so if you want to improve conditions for workers you have to change the system which is a step too far for governments and corporations. This is why you get appeasement legislation like this, which serves as more of a symbol rather than something that can practically be used.

The Canadian Criminal Code – of which the Westray Bill is an amendment – operates on a federal level. Occupational health and safety is regulated on a provincial level. As such, the practicalities of enforcement are questionable. Furthermore, offences under OHS Acts are regulatory, not criminal. Therein lies another problem, says Glasbeek, because regulatory offenses don’t stigmatize people in the way that criminal ones do.

In addition, in situations where a criminal charge could be viable, there is a higher burden of proof. You have to prove that there willfully was gross negligence. The prosecution may (and often does) find it easier to charge under OSHA.

“We will not get rid of [injuries and fatalities] until we show that coercion because of the nature of the workplace relationship inevitably leads to risks which are taken by the workers, in which they have no participatory or serious participatory rights, and they get maimed and killed. And by any standard that is criminal,” says Glasbeek.