Since Bill C-45 amended the Criminal Code in 2004, prosecutions and convictions under occupational health and safety regulations have increased — nowhere more so than in Ontario.
Record fines in the recent Vale Canada Limited and Metron Construction cases highlight the impact the occupational health and safety and criminal negligence changes have had.
The Criminal Code changes established a legal duty for all persons “directing the work of others” to take reasonable steps to ensure the safety of workers and the public. Courts must consider certain factors when sentencing an organization; the legislation provides for probation conditions that a court may impose.
Bill C-45 added Section 217.1 to the Criminal Code:
“217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”
Bill C-45 also added Sections 22.1 and 22.2 to the Code. These impose criminal liability on organizations and their representatives for negligence (22.1) and other offences (22.2).
Bill C-45 defines an organization as:
“a public body, a body corporate, a society, a company”; and
“a firm, a partnership, a trade union or an association of persons created for a common purpose.”
A finding of criminal guilt of an organization requires that a senior officer’s behaviour departed markedly from a reasonable standard of care.
In the Vale case, the company pleaded guilty and agreed to a record $1,050,000 fine. Two workers had been killed during an uncontrolled release of “muck” in a Sudbury-area mine. The Court noted the size of the company and its record of health and safety fines, as aggravating factors. Vale was fined $350,000 for each count — the highest-ever total fine levied by a Court in Ontario for contraventions of the Occupational Health and Safety Act.
Metron Construction is the first company convicted under the Criminal Code changes. The company pleaded guilty to one count of criminal negligence causing death, under the Criminal Code. Four workers died in 2009, when a scaffold collapsed. Metron had initially been fined $200,000, but that was increased on appeal, to $750,000. The company’s small size, clean record and a guilty plea from the president, were mitigating factors in sentencing.
Section 718.1 of the Criminal Code provides: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” The appeal court found that “Denunciation and deterrence” should have received greater emphasis in sentencing Metron.
Occupational Health and Safety Act, R.S.O. 1990, CHAPTER O.1
Ministry of Labour – Health and Safety