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The 10th Anniversary of Bill C-45: Reflecting on a Decade of OH&S Liability under the Criminal Code

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March 31, 2014 marks the 10th anniversary of the Bill C-45 amendments to the Criminal Code of Canada which had the effect of broadening the scope of criminal liability for organizations, senior officers and management in relation to occupational health and safety matters. Specifically, Bill C-45 redefined the terms “every one”, “person” and “owner” to include an organization, and established a legal duty for every one directing the work of another “to take reasonable steps to prevent bodily harm to that person, or to any other person, arising from that work or task.”

Although the introduction of the Bill C-45 amendments 10 years ago left many employers concerned that criminal prosecutions of health and safety matters might become the norm, no such floodgates have been opened. While the Criminal Code is indeed more readily applicable in the occupational health and safety sphere than it was a decade ago, the quasi-criminal provincial prosecution mechanism (as provided for under provincial occupational health and safety legislation) remains predominant; and the last 10 years have demonstrated that criminal charges will not be pursued except in very serious circumstances. More specifically, the past decade has seen only nine prosecutions commenced under the Bill C-45 amendments, with only five of those cases resulting in convictions or guilty pleas under the Criminal Code.

  1. R. v. Fantini (2005) – Mr. Fantini, a supervisor, was charged after a trench collapsed, killing a worker under his supervision. In exchange for a guilty plea to a charge under the Occupational Health and Safety Act and a fine of $50,000, the Criminal Code charge was withdrawn.
  2. R. v. Transpavé (2008 QCCQ 1598) – Transpavé was charged as an employer after one of its workers was fatally crushed by a cement-block packing machine. Unfortunately, the safety system intended to protect the worker had been disabled, without the knowledge of Transpavé. The company pleaded guilty to the offence and, in light of some $750,000 spent on health and safety improvements as a result of the incident, was fined the fairly restrained amount of $100,000.
  3. R. v. Scrocca (2010 QCCQ) – Mr. Scrocca was the owner and operator of a backhoe which malfunctioned, pinning and fatally injuring another worker. An investigation determined that the backhoe’s brakes were functioning at less than 30% of capacity, and that the machine had not been serviced in five years. At the conclusion of trial, Mr. Scrocca was convicted, and received a conditional sentence of 2 years less a day, to be served in the community.
  4. R. v. Gagné (2010) – Mr. Gagné, a train operator, was charged after the train he was controlling collided with track maintenance vehicles, killing one worker and injuring three others.  Mr. Gagné’s trial concluded with an acquittal.
  5. Steelworkers v. Weyerhauser (2011) – After a worker was asphyxiated while clearing debris in a sawmill, a WorkSafe BC investigation determined that management had violated OH&S regulations “willingly or with reckless disregard” and had a high level of knowledge of the hazards faced by the worker.  Although the police recommended criminal charges, the Crown refused to prosecute in light of insufficient evidence. Consequently, the Steelworkers’ Union commenced a private prosecution after convincing a British Columbia court that there was sufficient evidence to support the alleged contraventions. However, those charges were subsequently stayed, citing no reasonable prospect of conviction.
  6. R. v. Millennium Crane (2011) – A crane owned by Millennium Crane fell into a hole, crushing a worker to death.  Although Bill C-45 charges were laid in 2010, they were subsequently withdrawn, citing no reasonable prospect of conviction.
  7. R. v. Peck (2011) – Peck, a personal support worker in a nursing home, was charged after a nursing home resident died of a fall while being moved. The charge was subsequently withdrawn, citing no reasonable prospect of conviction.
  8. R. v. Hritchuk (2012 QCCS 4525) – Mr. Hritchuk, a manager at an automobile service facility, was charged after two workers were seriously burned while using a hand-crafted fuel pump. After pleading guilty to a different charge under the Criminal Code, Mr. Hritchuk received an absolute discharge.
  9. R. v. Metron Construction Corporation (2013 ONCA 541) – Metron Construction Corporation was charged after four of its employees fell to their deaths from a swing-stage platform. The company pleaded guilty to one count of criminal negligence, and was initially fined $200,000 plus a 25% Victim Fine Surcharge. The Crown successfully appealed that fine to the Ontario Court of Appeal, where the amount was increased to $750,000 plus a 25% Victim Fine Surcharge.

There has also been one other workplace-related Criminal Code conviction in the past year, R. v. Lilgert (2013 BCSC 1329), albeit under the criminal negligence provisions instead of the Bill C-45 provisions. In that case, Mr. Lilgert, the navigation officer of the Queen of the North ferry, was sentenced to four years’ imprisonment for his role in the ferry’s sinking and the loss of two passengers who were presumed drowned.

While there have been relatively few Bill C-45 prosecutions (and even fewer convictions) since the amendments were introduced 10 years ago, the recent decision in Metron Construction Corporation indicates that Bill C-45 may have finally found its “teeth”; and  it will be interesting to see what trend OH&S criminal prosecutions follow over the next 10 years.

Regardless of the frequency with which Bill C-45 is invoked in the years ahead, employers must remain vigilant in taking all precautions reasonable in the circumstances to protect the health and safety of their workers—not only as a matter of avoiding liability under Bill C-45 and achieving compliance with provincial health and safety legislation, but also as a matter of good business practice.

Ryan D. Campbell