Complexity, confusion stymies C-45 charges

Stephen Hunt was optimistic when we spoke with him in mid October. The Western Canada district director for the United Steelworkers Union (USW) in B.C., he seemed confident that his organization’s plan to prosecute a company for criminal workplace-safety negligence would succeed.

But if history is any indication, USW may face significant challenges.

It’s been six years since Canada changed its Criminal Code to make workplace-safety negligence a crime, implementing what was known as Bill C-45, a response to the workplace negligence that resulted in 26 deaths at the Westray Mine in Plymouth, N.S. in 1992.

The Bill C-45 amendments to the Criminal Code became law in 2004. But only a handful of companies and individuals have ever been charged.

Why have there been so few C-45 cases?

According to some workplace and safety experts, it’s a combination of uncertainty about the Criminal Code amendments – and complexity within the regulations – that keeps the number down.

Legal proceedings
Just a few days before an important legal proceeding in USW’s prosecution of forestry-products firm Weyerhaeuser Company Ltd. regarding the death of employee Lyle Hewer in New Westminster, B.C., Hunt explained why he thought the case would probably move forward: the police had investigated the issue and recommended that a case should go ahead; a justice of the peace reviewed it as well, and said it should advance.

But on the other hand, B.C.’s Crown attorney refused to pursue the case. USW instigated a private prosecution instead – the union would take the matter to court itself.

Private prosecutions rarely succeed.

Prior to the process hearing, Hunt said he didn’t understand exactly why the Crown attorney rejected the case. (The B.C. Attorney General’s office didn’t respond to our interview request.) But he had a theory about why so few C-45 cases have gone ahead.

“Many of the police forces in Canada don’t know about the amendment to the Criminal Code, and I’m sure Crown counsel doesn’t either,” Hunt said, explaining that some of the law enforcement agents he’s spoken with think workplace safety is the responsibility of workers compensation boards, such as WorkSafeBC, or ministries of labour — not the police and Crown.

“I talked to a Crown counsel one time and he said, ‘Look, we’d rather prosecute an impaired driving charge. At least we know we can get a conviction. We’re familiar with the law,’” Hunt said.

Norm Keith, for one, is well acquainted with C-45. A partner at the law firm Gowlings Lafleur Henderson LLP in Toronto, he specializes in workplace safety cases. His firm represents Millennium Crane Rentals, a Sault Ste. Marie, Ont. company charged under C-45. He said part of the problem comes down to poor collaboration.

“I think there’s a systemic policy riff between the criminal justice system — both police and Crown attorneys on the one side, and health and policy makers on the other,” he said.

Keith explained that there are two parallel systems at work: ministries of labour can punish companies for poor workplace safety practices with fines; and the police and Crown can punish the companies in criminal proceedings, threatening jail time and fines.

But why would a Crown attorney bother to pursue a C-45 case if the ministry of labour can dole out the punishment?

“That’s part of the screening process Crowns will go through,” Keith said.

Toothless tiger?
That screening process is complex, said Len Hong, president and CEO of the Canadian Centre for Occupational Health and Safety (CCOHS) in Hamilton, Ont. It’s difficult to pinpoint a case of negligence. Did the company know what was needed to keep employees safe? Did the company knowingly allow unsafe conditions to occur?

At the beginning of the investigation, all of the facts required to move ahead under C-45 may not be obvious. “First you have to figure out who the boss is, who the owner is, who the co-workers are,” Hong said. “You have to figure out who knew what safety steps were in place. And if they were there, were they (the workers) encouraged to bypass those steps? It’s tough.”

As a result, few C-45 cases have arisen over the last six years.

Hunt from USW said he’s noticed a drop in the number of safety specialists talking about the Criminal Code amendments.

“There was a subculture in the health and safety world that worked with management teams to... do due diligence, keep records, ensure that people are trained,” he said. “It’s disappeared now because really it’s become a toothless tiger.”

But Hong said it might just be that safety consultants have wrapped their C-45 training into programs on other regulations as well.

“Health and safety folks and lawyers would look at it holistically,” he said.

Keith from Gowlings said that even though the flow of C-45 cases started as a mere trickle, it seems to be growing. Cases such as Weyerhaeuser and Millennium are moving forward — for now.

“I think health and safety professionals and CEOs are awakening to the fact that this is more serious than they thought,” Keith said.

Bill C-45 cases filed to date

2004: Dominic Fantini of Vista Construction in King Township, Ont., charged under Occupational Health and Safety Act (OHSA) and C-45 after a trench collapsed on employees under his supervision — Fantini pleads guilty to OHSA charges in 2005, criminal negligence charges dropped.

2006: Quebec paving stone maker Transpav√© Inc. charged under C-45 after an employee is crushed by a cement-block packing machine — Quebec court fines Transpav√© $100,000 for criminal negligence in 2008.

Mark Hritchuk, service manager at a LaSalle, Que. auto dealership, charged with criminal negligence after an employee caught fire using a broken fuel pump — CCOHS says a court of inquiry convened on the matter in 2009, but no further information has been reported.

2010: David Brian Selvers, owner of Millennium Crane Rentals in Sault Ste. Marie, Ont., and crane operator Anthony Vanderloo charged with criminal negligence after a crane falls on employee James Vecchio and kills him — according to Millennium’s lawyer Norm Keith, a judicial pre-trial is scheduled for Nov. 30.

2010: Swing n Scaff Inc. and Metron Construction Inc. charged with criminal negligence after a scaffolding platform at the 13th floor of a Toronto apartment building collapsed on Christmas Eve 2009, killing four employees.

Stefan Dubowski is a freelance writer based in Ottawa. You can contact him at s[email protected]