Canada: Criminal Liability for Workplace Accidents

Recently enacted changes to the Criminal Code impose criminal liability on businesses and individuals in the event of workplace accidents. These changes, which were included in Bill C-45, An Act to Amend the Criminal Code (Criminal Liability of Organizations) received Royal Assent on November 7, 2003 and are expected to take effect January 1, 2004. The Act is the long awaited response to the Westray Mine disaster where twenty-six miners were tragically killed following a mine explosion in Nova Scotia in May 1992. The public inquiry that investigated the disaster uncovered a serious disregard for workplace safety by the corporation and its managers. Although several members of Westray’s management were initially charged, they were never prosecuted amidst much controversy and political wrangling.

The Act provides significant penalties in the event of a conviction. This includes imprisonment to a maximum of 25 years for individuals and fines of up to $100,000.00 for corporations. It is important to note that these penalties would be in addition to any existing penalties provided by provincial occupational health and safety legislation or other regulatory statutes. The Act’s provisions will not supersede the existing penalties provided by these statutes but will add additional criminal liability.

Upon conviction, the Act also provides a number of new factors that will be considered in any sentencing. These factors include whether the organization realized any advantage as a result of the offence, the level of planning involved, the cost of the investigation, and any regulatory penalties imposed and any actions taken by the organization to reduce the likelihood of future occurrences.

The Act expands the scope of corporate liability and individual liability.

Instead of just "corporations" being covered, the Act provides that "organizations" be covered. This would likely include trade unions, partnerships and other forms of association.

The Act also expands the scope of individuals that may be held liable. It broadly defines those that are involved in directing the work of others within an organization. It places a positive burden on such individuals to take reasonable steps to prevent bodily harm to employees. This provision could result in personal liability for individuals such as floor supervisors, managers and anyone else directing the work of others.

The Act also applies to "representatives", which is defined as a person who plays an important role or is responsible for managing an important aspect of the organization’s activities. It includes directors, partners, employees, members, agents and contractors. The terms "important role" and "important aspect" are not defined and will likely be the focus of much litigation in the future.

The Act imposes liability for not only intentional actions of representatives and senior officers, but also for their negligent actions. For example, if a representative of an organization, acting within his/her scope and authority, is party to the offence, and the organization’s senior officer fails to take reasonable steps to prevent a representative of the organization from committing the offence, the organization will be held liable. The Act thus arguably imposes a duty on senior officers and representatives to ensure that they take reasonable steps to prevent other employees from committing an offence.

Employers should consider the impact of the Act on their workplace and take steps to ensure that they are prepared when the Act takes effect. Such steps would include the following:

• undertake a thorough review and audit of the internal safety policies, procedures and practices including enforcement and discipline mechanisms;
• educate employees about the importance of workplace safety, their legal obligations under this Act and existing provincial statutes, as well as the costs of non-compliance both financially and in human terms; and
• ensure that there are good lines of communication within the company that encourage the free flow of information and concerns regarding safety.

These measures, once implemented and enforced, may assist in not running afoul of the provisions of the new Act.