2759 Advanced Occupational

Health and Safety

Module 2 Authority to Establish OHS
Laws in a Federal State

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 Course Plan

Module Titles
Module 1 – Course Introduction and Role of Statutes, Regulations & Industry
Standards
Current Focus: Module 2 – Authority to Establish OHS Laws in a Federal
State
Module 3 – OHS Legal Duties and Enforcement
Module 4 – Legal Defense of Due Diligence and Regulatory Prosecutions
Module 5 – Alcohol and Drugs in the Workplace Part 1
Module 6 – Alcohol and Drugs in the Workplace Part 2
Module 7 – Violence and Harassment in the Workplace
Module 8 – Harassment Investigations
Module 9 – Final Exam

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 Module 2 Section 1

The Westray Disaster: A National

Tragedy

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 The Westray Disaster: A National Tragedy

• Curragh Inc. – first time managing coal mine

• Lucrative 15 year contract w/Nova Scotia Power Commission

• Numerous inspection reports identified dangerous levels of

gas, possible cave-ins and explosive coal dust

• OHS Regulator had authority to shut down mine but did not

• Economically depressed region – pressure on employees to

overlook safety

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 The Westray Disaster – A National Tragedy

• Curragh Inc. was financially supported by the provincial and federal

governments

• Coal mine in Pictou County, Nova Scotia

• September 11, 1991 – official opening

• 225 people employed

• May 9, 1992 - explosion and fire - likely caused by build-up methane

gas

• Resulted in the deaths of 26 miners; bodies of 11 miners were never

recovered

• No survivors in the disaster

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 Failed Prosecution

• Oct 5, 1992 – 52 OHSA charges laid against company – all

subsequently dropped

• Apr 20, 1993 – Curragh Inc., Gerald Phillips & roger Parry,
manager and underground mine manager charged with
manslaughter and criminal negligence causing death
• Dismissed for lack of particulars
• Charges re-laid with particulars
• Problems with non-disclosure of documents

• Feb 5, 1995 – Criminal Negligence trial begins

• 44 days of trial
• 23 witnesses
• Allegations of prosecutorial misconduct

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 Failed Prosecution

• June 9, 1995 motion to stay granted

• Dismissed for lack of particulars
• Charges re-laid with particulars
• Problems with non-disclosure
• Lack of evidence to secure conviction

• Overturned by NSCA in December 1995 – new trial ordered

• March 20, 1997 – SCC confirms the NSCA decision
• Crown takes 12 months to decide not to proceed with second trial,
deciding that there was no reasonable prospect of conviction
• In the meantime, Curragh is petitioned into bankruptcy

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 Public Inquiry and Recommendation 73

• May 10, 1992 – Public inquiry called for

• Injunction application brought to halt inquiry. Applicants allege

Inquiry will violate Charter rights
• Allowing inquiry to proceed where criminal charges are
contemplated would prejudice their right to a fair trial
• Sept 30, 1992 – injunction granted and later upheld by the Nova
Scotia Court of Appeal.

• May 4, 1995 – Supreme Court of Canada (SCC) orders Public

Inquiry to proceed
• Accused elected trial by judge alone, therefore public opinion
from Inquiry would not affect jury
• Primary purpose of Inquiry was to identify case of disaster, not to
obtain evidence for prosecution of a witness

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 Public Inquiry and Recommendation 73

• Justice Peter Richard of NS Supreme Court

– Investigate the causes of the explosion
– Was mine properly established and operated?
– Had defects or neglect in mine and its operation
contributed to the explosion?
– Could explosion have been prevented if mine had
complied with safety legislation?
– Any contributing political and financial circumstances?

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 Public Inquiry and Recommendation 73

• Six “what if” Questions formed the Inquiry

1. What if Westray’s CEO had sent a message to management that safety was
paramount?
2. What if the mine managers had conscientiously directed compliance with safety
procedures?
3. What if the Coal Miners Regulation Act had been applied and enforced by the Dept of
Labour?
4. What if the Dept of Natural Resources had fulfilled its legislative responsibility and
ensured, before, issuing permits, that Westray’s plans were safe and were followed
on a regular basis?
5. What if Westray’s employees had voted in favour of joining a union as they had the
chance to do in January 1992?
6. What if a Dept of Labour inspector had gone underground when he visited the mine
on May 6, 1992 to ensure compliance with orders issued several days earlier?

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 Public Inquiry and Recommendation 73

• Final Report made 74 recommendations concerning criminal

liability of executive directors, incentive programs and safety
issues.

• Recommendation 73 – Set the ground work for Bill C-45

– “The government of Canada through the Department of
Justice, should institute a study of the accountability of
corporate executives and directors for the wrongful or
negligent acts of the corporation and should introduce in
the Parliament of Canada such amendments to legislation
as are necessary to ensure that corporate executives and
directors are held properly accountable for workplace
safety.”

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Any questions?

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 Module 2 Section 2

• Bill C-45 Amendments to the

Criminal Code

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 Genesis of Bill C-45

• October 21, 1999: Bill C-259 tabled, proposing criminal

accountability for corporations, directors and officers in
relation to worker health and safety.
• February 2001: Bill C-284 tabled. Established broader
liability than just the directing mind of a corporation.
• Both bills proposed life imprisonment if an act or omission
resulted in death.
• C-284 contained a controversial “reverse onus”

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 Standing Committee on Justice & Human
Rights

• Bill C-284 referred to Committee in February 2002 and eventually

withdrawn.

• Evidence heard from stakeholders

• Westray victims' families
• Union members
• Legal professionals
• Advocacy groups

• June 2002 Recommendation: “that the government table in the

House legislation to deal with the criminal liability of corporations,
directors and officers.”

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 Bill C- 45 comes Alive

• June 2003 (11 years after Westray) federal government

tables Bill C-45, An Act to Amend the Criminal Code
(Criminal Liability of Organizations) 2003, c. 21
• November 7, 1993 – Royal Assent
• Came into force March 2004 – not retroactive

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 Bill C-45 Legislative Purpose

• Establish rules for attributing criminal liability to organizations for

the acts of their representatives

• Establish a legal duty for all persons directing work to take

reasonable steps to ensure the safety of workers and the
public

• Establish factors for courts to consider when sentencing an

organization

• Provides optional conditions of probation that a court may impose

on an organization.

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 Bill C-45 Key Features

• Move away from “identification theory” to capture broader range of criminally

responsible persons.

• Criminal liability engaged where mens rea and actus reus not derived from the same
individual.

• Established OHS legal duty in the Criminal Code

• Reformed criminal liability for corporations

• “Corporation” broadened to “Organization”

• New Crime of OHS Criminal Negligence

• Complex, new formula for organization guilt

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 Bill C-45 Key Features

• Applies to federal and provincial workplaces

• Adds to rather than replaces existing OHS legislation

• Legal duty is similar to the general duty clauses currently found

in most OHS statutes

• Elevates OHS liability, stigma and criminal penalties with a criminal

record for the offender.

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Any questions?

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 Module 2 Section 3

Offences of OHS Criminal Negligence

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 Bill C-45: New OHS Duty

• OHS Duty – s. 217.1

• “Everyone who undertakes, or has the authority, to direct how another person
does work or performs a task is under a legal duty to take reasonable steps
to prevent bodily harm to that person, or any other person, arising from that
work or task”

• S. 217.1 of the Criminal Code

• Applies to Individuals and Organizations
• Requirement to take “reasonable steps” to prevent
“death” or “bodily harm”
• Establishes a new crime of OHS Criminal
Negligence
• New duty dovetails with s. 291/220/221 of the Criminal
Code (general criminal negligence provisions)

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 Bill C-45 establishes a new OHS Duty

• Criminal Negligence – s. 219 / S. 219 (1)

• Everyone is criminally negligent who in doing anything, or in
omitting to do anything that it is his duty to do, shows wanton or
reckless disregard for the lives or safety of other persons.

• Causing death – s. 220

• Every person who by criminal negligence causes death to
another person is guilty of an indicatable offence and liable to
imprisonment of life.

• Causing bodily harm – s. 221

• Everyone who by criminal negligence causes bodily harm to
another person is guilty of an indictable offence and liable for
imprisonment of a term not exceeding ten years.

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 Individual Responsibility & Liability

• Maximum Penalties for Individuals:

– Injury - 10 years in prison

– Death - life imprisonment

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 Organizational Responsibility & Liability

• OHS Criminal Negligence for an organization is established

when;
– Acting in the scope of their authority, one or more
representatives commits the offence of OHS Criminal
Negligence
AND
– A senior officer departs markedly from the standard of care
that could reasonably be expected to prevent a
representative from committing the offence

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 Roles of Representatives & Senior Officers

• “Representative”
• in respect of an organization, means a director, partner,
employee, member, agent or contractor of the organization;
• “Senior officer”
• a representative who plays an important role in the
establishment of an organization’s policies or is responsible for
managing an important aspect of the organization’s activities
and, in the case of a body corporate, includes a director, its
chief executive officer and its chief financial officer.

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 Roles of Representatives & Senior Officers

• “Representative”
• in respect of an organization, means a director, partner,
employee, member, agent or contractor of the organization;
• “Senior officer”
• a representative who plays an important role in the
establishment of an organization’s policies or is responsible for
managing an important aspect of the organization’s activities
and, in the case of a body corporate, includes a director, its
chief executive officer and its chief financial officer.

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 Organizational Responsibility & Liability

• Penalties for Organization

– Unlimited fine for an indictable offence

– Fine not tax deductible
– Criminal Record and Stigma
– Damage to Business Reputation
– Failure of Business

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 Metron Decision

• 4 workers killed, 1 serious injured when a swing stage

collapsed. 6th worker connected to a fall arrest system, was
uninjured.
• Swing stages were defective and unable to withstand weight
of the men. Supervisor directed workers to board swing stage
despite availability of only 2 lifelines.
• Metron pleaded guilty, supervisor criminally negligent
• Metron did take a number of safety related steps,
nevertheless criminally liable.
• Court of Appeal overturned a $200,000.00 fine and imposed
a fine of $750,000.00.
• Supervisor sentenced to 3.5 years in prison.

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Any questions?

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