Page 14 - CCCA64_2009

CCCA_V3No4_Dept-SubstantiveLaw-FIN.qxd:CCCA_V1No2_Dept-CourtLeg-V1.qxd 11/24/09 11:28 AM Page 14 Substantive Law Criminal negligence and the corporation: Why workplace safety regimes are more important than ever. By Pradeep Chand the workplace,but also to members of the public who enter the workplace and may be affected by a workplace activity. Finally, under the Ontario Occupational Health and SafetyAct (OH&SA),in order for a corporation to be found guilty, the Crown only has to prove guilt on a balance of probabilities. In order for a corpora- tion/organization to be found guilty of neg- of its employees, and it will likely be ligence causing bodily harm or negligence ealth and safety issues are becoming increasingly used in the future. causing death under the new Criminal Htop concerns for businesses. They Code provisions,the Crown must prove guilt cannot, and should not, be ignored, espe- A new duty beyond a reasonable doubt.This is a much high- cially since safety at the workplace — Bill C-45 amended the Criminal Code to er onus of proof and it will make proving traditionally a matter for occupational impose a new duty on organizations and such crimes more difficult;however,if found health and safety regulatory enforcement corporations to ensure workplace health guilty under the Criminal Code, a corpora- — became a matter for criminal enforce- and safety. It requires that: tion faces incredibly severe penalties. ment in 2004 as a result of Bill C-45. “everyone who undertakes, or has the authori- If the Crown proceeds by summary There has been one prosecution and ty, to direct how another person does work or conviction, the maximum fine an organi- conviction under the new law in the 2005 performs a task is under a legal duty to take zation will face is $100,000.00. However, death of a worker killed on the job at a reasonable steps to prevent bodily harm to where the Crown proceeds by indict- Quebec concrete block manufacturer. that person, or any other person, arising from ment, there is no limit on the amount of The decision in that case makes it clear that work or task.” the fine that may be imposed. that, although there are no hard-and-fast It is important to remember that the Bill C-45 created a two-step test the rules to ensure an organization remains word “everyone” includes individuals, Crown must meet before an organization insulated from liability, it would be pru- organizations, and corporations. Should a will be found guilty of criminal negligence dent for a corporation to incorporate all workplace accident occur, the amend- causing bodily harm or criminal negli- the best practices and industry standards ments make it possible to charge a corpo- gence causing death. The Crown must into an occupational health and safety ration (or its supervisors or representatives) prove, beyond a reasonable doubt, that: management system. with criminal negligence. Furthermore, 1. One or more of the organization’s More importantly, however, employers, the new duty applies to any individual in representatives acted in a criminally senior management and members of the organization who has the authority to negligent manner; and boards of directors should take note: even direct another person to perform work. 2. Senior officers responsible for that though it took four years for this first This encompasses a broad range of people, aspect of the organization’s activities conviction and fine to be imposed, they including employers, supervisors, owners, did not take the reasonable steps nec- should not think that the Criminal Code and directors. essary to prevent the situation from will not be used in future to prosecute The new duty requires reasonable steps occurring or to correct the situation. where there is a statutory breach. Bill to be taken to prevent bodily harm to any If the Crown proves both of these ele- C-45 has made it easier to convict a cor- person. This means that the duty is not ments, an organization/corporation will ISTOCKPHOTO poration criminally based on the conduct only owed to employees and workers at automatically be found guilty. 14 CCCA Canadian Corporate Counsel Association WINTER 2009