In 2010, there was an explosion at a Massey mine which resulted
in the deaths of 29 people. This horrific incident prompted
officials to investigate and prosecute Blankenship, not for a
direct responsibility for the accident, but for conspiracy to
violate federal safety mine standards.
Blankenship was acquitted of several felony charges at his
trial. The trial evidence showed that Blankenship had a wealth of
knowledge of the Massey mines. He received production reports every
30 minutes and recorded many of his telephone conversations with
his subordinates. With his focus on Massey's finances, the
prosecution argued that there was an "unspoken"
conspiracy that prioritized profits over safety standards and
practices. The defence countered that "at worst,"
Blankenship knew about the safety violations and did not take
sufficient steps to prevent them.
What might happen in Canada with similar facts?
Provincial health and safety laws impose obligations on
individual supervisors, directors and officers. The term
"supervisor" is defined as one who has charge of a
workplace or authority over a worker. Who fits within that
definition is based on an individual's actual powers and
responsibilities, and not on his or her title. It includes someone
with hands-on authority to promote, discipline, schedule work and
address employee complaints. It also includes the manager of a
transportation system with responsibility for over 400 workers,
with ultimate authority over budget and scheduling. Provincial laws
are aimed at prevention – there does not need to be an injury
or worse for there to be a breach and a prosecution.
Over a decade ago, Canada amended the Criminal Code to
create a criminal law duty on those who have the authority to
direct how another person does work or performs a task to take
reasonable care to prevent harm to the workers or to any other
person. This is similar to the provincial language. For a federal
prosecution to occur, there must sadly be an injury or death, and
the charge is criminal negligence causing injury or death. This
section has been used sparingly since it was brought in.
As we have written earlier, most recently, an Ontario court
found a project manager guilty of four counts of criminal
negligence causing death and one count of criminal negligence
causing bodily harm. The charges stemmed from a 2009 Christmas Eve
swing stage collapse at a highrise building. There were
insufficient lifelines for the number of people on the swing stage,
including the project manager who managed to escape injury. The
court sentenced the defendant to three and a half years in prison
on each count, to be served concurrently. The case is under
It appears from articles on the Blankenship
case that he was a very hands on CEO and was intimately aware
of everything that went on at this mine. It also appears that he
was aware of ongoing safety violations and did not prevent them. In
Canada, that could be seen as a breach of both provincial and
criminal laws. In injury or death situations, it is not uncommon to
face two sets of charges, with a plea to one set resulting in
withdrawal of the other charges.
There is no doubt that such prosecutions will continue to
receive the attention of courts in both the U.S. and in Canada. In
the meantime, even companies and their people with the enviable
safety record of the Canadian energy industry should ensure that
they are satisfied that they are aware of potential safety risks
and the ongoing steps being taken in the company to address those
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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