Criminal Liability for OHS Violations A Review of 10 Years of Bill C-45 Cases Presented by: Adrian Miedema, Dentons Canada LLP Bongarde Webinar, April 8, 2015

Two Types of Safety Offences Provincial Criminal 08 April 20152

Two Types of Safety Offences Provincial: prosecuted by provincial ministry of labour / workplace safety agency Criminal: prosecuted by police / criminal prosecutors 08 April 20153

Bill C-45 (amended Criminal Code, 2004) “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.” 08 April 20154

Bill C-45: Workplace Safety Duty “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.” 08 April 20155

Criminal Negligence 219. (1) Every one is criminally negligent who (a) in doing anything, or (b) 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. 08 April 20156

Bill C-45 Cases 08 April Fatality (trench collapse) Outcome: charges withdrawn (2005) - pleaded guilty to provincial OHSA charges Domenico Fantini (Ontario, 2004)

Bill C-45 Cases 08 April Fatality (crushed by heavy machinery) Outcome: Company pleaded guilty (2008) and was fined $110, Transpavé (Quebec, 2005)

Bill C-45 Cases 08 April Fatality (employee struck by a backhoe driven by Scrocca) Outcome: guilty (2010) – failed to adequately maintain brakes on backhoe. Sentenced to two years less a day. Pasquale Scrocca (Ontario, 2006)

Bill C-45 Cases 08 April Fatality and 3 injuries (collision of locomotive and track maintenance vehicle) Outcome: not guilty (2010) Simon Gagné and Steve Lemieux (Quebec, 2006)

Bill C-45 Cases 08 April Fatality (two passengers lost and presumed drowned) Ferry’s navigation officer charged in 2010 Outcome: guilty (2013; upheld on appeal, 2014) Sentenced to 4 years and a prohibition from operating a vessel for 10 years Karl Lilgert (Queen of the North case) (B.C., 2006)

Bill C-45 Cases 08 April Automotive garage supervisor Employee caught on fire Outcome: pleaded guilty (2012) Received absolute discharge Mark Hritchuk (Quebec, 2007)

Bill C-45 Cases 08 April Four deaths (swing stage scaffolding collapsed) Metron Construction, director and supervisor charged Outcome: Metron pleaded guilty, fined $750, (increased from $200, on appeal) Director, Joel Swartz, pleaded guilty to 4 OHSA charges and was fined $90, plus 25% Victim Fine Surcharge Supervisor, Vadim Kazenelson criminally charged, committed for trial Metron Construction Corporation (Christmas Eve Fatalities) (Ontario, 2009)

Bill C-45 Cases 08 April Fatality (crane collapsed) Company, crane owner and crane operator charged Outcome: criminal charges withdrawn Company convicted under Ontario OHSA of failing to ensure that the crane was maintained in a condition that would not endanger a worker. Fined $70, plus Victim Fine Surcharge Millennium Crane Rentals Limited (Ontario, 2009)

Bill C-45 Cases 08 April Fatality (sawmill) Union initiated private criminal prosecution Criminal Justice Branch took over prosecution Outcome: charges stayed (2011) Lyle Hewer fatality – Weyerhaeuser (B.C., 2004)

Bill C-45 Cases 08 April Fatality (death of a nursing home resident) Personal care worker charged Outcome: charges withdrawn Diane Peck (Ontario, 2011)

Two Immigration Cases 08 April Sought permanent residency in Canada Criminal judgment from court in Taiwan and Spain respectively: negligently killed another by neglecting to exercise the degree of care required by such occupation gross negligence manslaughter and offence related to the rights of workers because of his responsibility for a workplace accident Outcome: applications for permanent resident status rejected because committed an “equivalent Criminal Code offence” Lu (2011) and Ulybin (2013)

Summary Bill C-45 charges still rare Only 10 prosecutions in 10 years Only 5 convictions Versus 780 convictions under Ontario OHSA in 2013/14 alone 08 April

Summary 6 individuals, 4 corporations charged Individuals: 1 withdrawn 1 acquittal 3 convictions 1 ongoing Corporations: 2 withdrawn 2 convictions 08 April

Summary 3 provinces: Ontario: 4 Quebec: 4 B.C.: 2 08 April

Summary 9 of 10 involved fatality 08 April

Summary Increasing public pressure for charges Increasing union pressure for charges Unions may initiate private prosecution Significant media risk 08 April

Why so few Bill C-45 charges? Police defer to provincial OHS investigators Police not comfortable / skilled prosecuting offences arising out of workplace? Very difficult to prove that supervisor showed “wanton or reckless disregard for the lives or safety of other persons” 08 April

Risk Management – Bill C-45 Provincial OHS officers and police may co-operate Provincial OHS officers have authority to compel statements and production of documents Treat provincial and OHS investigations separately If provincial OHS investigators and police both investigating, put plan in place for managing criminal risk 08 April

Keys to Avoiding Bill C-45 Charges 1.Regularly identify and assess hazards 2.Deal immediately with identified hazards 08 April

Questions? 08 April

Adrian Miedema (416) Dentons Canada LLP 77 King Street West Suite 400 Toronto, Ontario M5K 0A1 Canada Thank you © 2015 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This document is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. We are providing information to you on the basis you agree to keep it confidential. If you give us confidential information but do not instruct or retain us, we may act for another client on any matter to which that confidential information may be relevant. Please see dentons.com for Legal Notices.