Sunday, 13 March 2016

Breach of duty to ensure workplace safety leads to prison term

Many will remember the tragic workplace deaths that occurred on Christmas Eve, 2009 after a project manager put company profits ahead of workplace safety. The workers involved had been on a swing stage, doing work on a high-rise in Toronto.
The company had a year-end deadline to complete a high-rise project. It was late December and the project was behind schedule. The deadline was looming. Despite the fact that it was both industry practice and the legal duty of an employer/manager to ensure there are separate means of protecting each worker on a swing stage from a fall, the workers were not given adequate safety equipment - there were only two safety harnesses for the six workers involved.
When the swing stage collapsed, four of the workers fell to their deaths. A fifth worker survived the fall, but suffered grievous injuries. The sixth worker had a safety harness and was unharmed. The project manager was found guilty and sentenced for criminal negligence.
Why did this happen?
The court examined why the workers didn’t all have safety equipment and found that obtaining the necessary safety equipment would have resulted in some delay. Given that there was a tight deadline, the project manager weighed the benefit to the company of having the work done on schedule against the risks to worker safety. The project manager decided in favour of the company benefit. He was found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.
Sentenced to 3½ years
The project manager had a legal duty to ensure the safety of the workers via the Criminal Code. Section 217.1 of the Code imposes a legal duty on everyone who has the authority to direct how another person does work or performs a task “to take reasonable steps to prevent bodily harm to that person or any other person arising from that work or task”. The project manager had failed in that duty.
During sentencing the court noted that this was not a typical case of criminal negligence. This case involved a manager who made an informed decision to ignore the safety of workers. There was thus, in the court’s opinion, a high degree of “moral blameworthiness.”
Due to the egregious conduct of the project manager and the tragic consequences of his negligence, the Court deemed it fitting to impose a sentence that would send a strong message to employers across the country, stating: "A consideration of all of the circumstances can lead only to the conclusion that a   significant term of imprisonment is necessary to reflect the terrible consequences of the offences and to make it unequivocally clear that persons in positions of authority in potentially dangerous workplaces have a serious obligation to take all reasonable steps to ensure that those who arrive for work in the morning will make it safely back to their homes and families at the end of the day."[1]
Justice MacDonnell sentenced the project manager to 3.5 years in prison.
Commentary
This case marks the first time the so-called Westray Law has been used in Ontario to sentence an offender. The Westray Law is found in section 217.1 of the Criminal Code and was first enacted through Bill C-45 in 2004. Bill C-45 was also known as the “Westray Bill”. 
This law was created as a result of the 1992 Westray coal mining disaster in Nova Scotia where 26 miners were killed after methane gas ignited, causing an explosion. Prior to the explosion, employees, union officials and government inspectors had all raised safety concerns. The company largely ignored the stated safety concerns.
After the disaster, the province tried and failed to secure a conviction against the company and/or its managers. No one from the company was properly held to account for the negligent safety standards at the mine. A Royal Commission investigated the disaster and made recommendations. These recommendations, ultimately led to Bill C-45, which was enacted roughly 12 years after the disaster.
The road to the enactment of Bill C-45 was long and politically complex. With the lengthy delays in enacting the bill, it’s impossible to say whether Bill C-45 would have come into being had it not been for the NDP’s unflagging demand for corporate criminal liability laws to protect workplace safety. In the years following the Westray disaster, the NDP tabled several private members’ bills urging corporate criminal liability laws.
The labour movement also kept the pressure on legislators, publicly calling for heightened workplace safety laws. When Bill C-45 was passed, then NDP leader, Alexa McDonough acknowledged the important of the unions to the development of these legislative safety protections, stating that the United Steel Workers: "... poured their heart and soul, blood and guts into pressing for the kind of changes in law, the changes in health and safety practices in Nova Scotia and across the country, that would ensure never again would there be an occurrence permitted in this country such as what happened at Westray."[2]
The bills introduced by the NDP became a model for bill C-45. While the final version of the bill C-45 is less fulsome than any of the bills proposed by the NDP, it made positive reforms to the Criminal Code and stands as a victory of political action in response to a crisis of national significance.
Some will consider a 3.5 year period of imprisonment to be too lenient given that lives were destroyed through the project manager’s criminal negligence. Others will argue that the sentence is too harsh and that the project manager should be sentenced to minimal, if any, prison time. Wherever you stand on the spectrum, one thing is clear: this case stands for the proposition that the courts are prepared to enforce laws that protect workers from employers who seek to maximize profit at the expense of safety.
This increased focus on workplace safety is a victory for everyone. We hope this judgment can provide some small solace to those affected, and also to the victims of the Westray mining disaster who were not able to see justice done for their loved ones.





[1] R. v Vadim Kazenelson, 2016 ONSC 25 (CanLII), at para 45.
[2] (Hansard 27 October 2003: 17:45).

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