Transpavé Inc., a Québec manufacturer, is the
first organization to be convicted under the Occupational
Health and Safety ("OHS") Criminal Negligence causing
death. In October 2005, a 23 year old employee of
Transpavé Inc. was fatally injured after moving into an
area where a machine was apparently jammed. The equipment was
equipped with a lightbeam or curtain guarding system that was
intended to stop the operation of the machine if the
light-beam/curtain was broken. However, the guarding system
failed and the worker was fatally injured.
The Criminal Code was amended on March 31, 2004, to
establish a new positive duty on individuals and organizations
to take "reasonable steps to prevent bodily harm" to
workers, the public, and others involved in workplace activity.
Bill C-45 amendments to the Criminal Code also
significantly change the threshold for establishing guilt for
an organization, including a corporation.
In the Transpavé case, the Québec Commission
de la Santé et de la Sécurité Travail
("CSST"), investigated the workplace fatality. The
CSST concluded that the light-beam/curtain system was disabled
at the time that the accident occurred. The police became
involved after the fatality and laid the Criminal Negligence
causing death charges. The plea of guilty by Transpavé
Inc, on December 7, 2007, was in contrast to their initial
public reaction to the charges. Transpavé publically
stated their intention to defend the charge at trial. However,
the entering of a plea of guilty, pursuant to a plea bargain
agreement, has now resulted in the first conviction under the
Bill C-45 amendments of the Criminal Code for an
organization in Canada.
The sentencing phase of the Transpavé prosecution is
scheduled to take place on February 26, 2008. It remains to be
seen what the scope of the penalty will be, especially in light
of the fact that the Criminal Code provides for an
"unlimited" fine for an organization, including a
corporation like Transpavé, who is convicted of an
indictable offence. Transpavé's plea of guilty
and pending sentence are an important reminder to senior
executives and their organizations of the legal risk when
workplace incidents occur.
To reduce risk, organizations need to ensure the
Establish and implement an effective occupational health
and safety management system, and audit it regularly;
Prevent accidents and injuries since individuals and
organizations cannot be charged under the Bill C-45
amendments unless there is "bodily harm";
Ensure compliance with applicable OHS statutes and
regulations by an effective OHS management system.
For a detailed analysis of Bill C-45, and its compliance
requirements, please see my book Workplace Health and
Safety Crimes (Lexis-Nexis, 2004).
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