Canada: Workplace Injuries And Risk Regarding Companies' Criminal Responsibility

Since the amendments to the Criminal Code in 2004, Parliament armed itself with an arsenal of legal weapons aiming to facilitate criminal prosecutions against organizations in case of workplace injuries.

These amendments provide that any act or omission that constitutes the failure of a legal duty reflecting wanton or reckless disregard for the life or safety of others, and which results in death or injury can not only entail the personal criminal liability of directors, officers and employees who have committed the offense but also the criminal liability of the employer as an "organization" within the meaning of the Criminal Code.

This being said, the Criminal Code clearly establishes an employer's obligation of supervision. This entails that any organisation which is involved with performance of work must take the necessary measures to prevent bodily harm to any person, including the employees doing the work. Not doing so may lead to very heavy consequences.

Under the Criminal Code, legal persons are considered to have participated in the offense when the Crown demonstrates, firstly, that a representative of the corporation has participated in the commission of the offense and, secondly, that the senior officer who is in charge of the organization's activities relevant to the offence did not respect the standard of care that would reasonably be expected in the circumstances. To dismiss the charges, legal persons, such as organizations, will have to establish a "due diligence" defense based on the principles of criminal law.

As for fines that may be imposed to the organization found guilty of such charge, Parliament provides a fine to be determined by the court in proportion to the offense committed. In the case of an offense punishable by summary conviction, the maximum fine an organization may face is $100,000. For indictable offences, there is no maximal fine and the court takes into consideration different factors in order to establish it.

Sentencing can include optional conditions attached to a probation order applicable to the organization which may give rise to compensation to any person for loss or damage as a result of the commission of the offense. The organisation can also be forced to develop standards to reduce the likelihood of recidivism within its walls.

Since the amendments in 2004, few judgements have condemned organizations of criminal negligence. The first of its kind was the Transpavé case in 2008 in which criminal charges were laid against the company for the death of a young employee that was crushed by heavy machinery. Specific factors influenced sentencing such as the lack of safety training within the organization and the fact that the safety device of the machinery at matter was disabled at the time of the accident. Transpavé finally pleaded guilty and received a $100,000 fine, as suggested by both parties. The court also ordered Transpavé to pay a victim surcharge of $10,000. The fine amount was determined by the small size of the company (100 employees), the guilty plea and the fact that Transpavé has spent more than $750,000 on improving safety measures to prevent other injuries to occur in the future.

In 2009, four workers were killed and one was seriously injured at a Toronto construction site¹. The workers had boarded a swing stage that collapsed as it descended from the exterior of the fourteenth floor of the high-rise construction site. It was proven that the accident occurred while three times as many workers than lifelines available were on the swing stage and only one lifeline were properly engaged. In this matter, the company, Metron Construction Corporation, and three corporate officers were charged with criminal negligence. The sentencing judge ordered a fine of $200,000 plus a victim fine surcharge of $30,000. The amount of the fine was mainly based on Metron Construction Corporation's ability to pay. The fine imposed to the company was later appealed in 2013 by the Crown. The Appeal court concluded that the sentencing judge placed undue weight on the company's ability to pay and tripled the fine, raising it to $750,000 with an additional victim surcharge of $112,500 because of the extreme negligence of the organization. The Court of Appeal made it clear that the company's economic viability is not a significant factor to take into account to determine the quantum of the fine.

This being said, companies should always deliver a safe workplace to all their employees in order to limit their liability and reduce the chances of being charged under the provisions of the Criminal Code. Employers should be aware of their legal obligations under occupational health and safety laws and standards, and determine what hazards exist in their workplace and how to effectively reduce or eliminate them. The implementation of an effective workplace health and safety program is highly recommended.

Footnote

1 R. v. Metron Construction Corporation, 2013 ONCA 541

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