Canadian Occupational Safety

13 2019 JUNE/JULY orders. Could this improve safety more than the blunt tools of current compli- ance orders and prosecution? • Corporate or organizational probation requiring meaningful OHS change after conviction of an offence. In some jurisdictions, OHS prosecutors refuse to seek creative sentences that could include corporate probation. Proba- tion could require court-monitored direction to make specific, mean- ingful change to OHS relating to an infraction, with or without assistance of external OHS professionals. Would this help achieve more meaningful and long-lasting change to corporate safety systems, especially where they are found lacking by a court? • Use of monetary penalties for OHS purposes in an attempt to prevent incidents before they occur, instead of government general revenue funds. If prosecution is to continue, should proceeds go toward useful, preventa- tive safety measures (even supporting some of the above potential measures) rather than penalizing businesses after a tragedy? Currently, OHS penalties imposed in some provinces go to the municipality in which the contraven- tion occurred to fund court systems. Criminal Code penalties go to general revenue funds. If safety goals include raising the over- all level of safety awareness, compliance with standards and laws, attitudes, proactive correction and prevention, I suggest we ask, "Are trials with resulting fines and penalties or administrative fines achieving this? Do lengthy Crimi- nal Code proceedings raise the level of safety in our workplaces?" Or is there a better way? COS Cheryl A. Edwards is a former Ontario Ministry of Labour OHS prosecutor and is a senior partner in Mathews, Dinsdale & Clark's OHS and workers' compensation practice group. She can be reached at cedwards@mathewsdinsdale.com or (647) 777-8283. CRIMINAL NEGLIGENCE PROSECUTIONS Below are select cases where both OHS proceedings (prosecution or administrative monetary penalties) and Criminal Code criminal negligence were pursued. R. v. Weyerhauser A worker at this company's mill was engulfed by wood waste and asphyxiated in November 2004. OHS: WorkSafeBC imposed an administrative monetary penalty of $250,000 Criminal Code: Criminal negligence causing death charges commenced directly by the United Steelworkers' Union. The Crown prosecutor concluded in 2011 that deficiencies existed, but there was no evidence that management knew of the risk that lead to the fatality and failed to address it, as required for corporate criminal prosecution. The criminal negligence charges were stayed and there was no criminal conviction or penalty. R. v. Hritchuk Three workers were burned while transferring gas at a car dealership where Mark Hritchuk was the service manager. The specialized device they were using had not been working for some time. OHS: The company was charged and pleaded guilty under Quebec Loi sur la santé et la sécurité de travail. An OHS penalty of $10,500 was implemented. Criminal Code: In May 2007, Hritchuk was charged with criminal negligence causing bodily harm. He pleaded guilty to the charge of unlawfully causing bodily harm contrary to section 269(a) of the Criminal Code and the criminal negligence charges were withdrawn. In imposing the discharge, the Crown considered the fact that Hritchuk has no intention to injure workers and he was suffering from difficult personal circumstances at the time. R. v. Dunford Keith Dunford was a professional truck driver. Speeding and distracted, he struck and killed a flag person in a construction zone. OHS: No OHS charges or penalty. Criminal Code: Dunford was charged with criminal negligence causing death and dangerous operation of a motor vehicle causing death. At trial, the criminal negligence charges were dismissed because the Crown did not prove wanton and reckless disregard for lives and safety of others. Conviction of dangerous operation of a motor vehicle causing death under the Criminal Code occurred. Dunford was sentenced to two years less a day in jail, plus a three-year driving suspension. The sentence was upheld on appeal on Jan. 9, 2017. R. v. Hoyeck A mechanic was killed in September 2013 while removing a gas tank from a van with an acetylene torch. OHS: Twelve charges under the Nova Scotia OHS act commenced and are apparently still pending, but there is some doubt as to whether they will proceed due to a lengthy delay and the Charter right to a "trial within reasonable time." OHS charges related to maintenance of equipment, instruction, training and supervision and compliance with CSA standards were imposed. Criminal Code: Elie Hoyeck, the owner of the garage, was charged under the Criminal Code with criminal negligence causing death. He was not present at the time of the events and specifically did not direct the use of the torch. Despite numerous health and safety shortcomings, there was no finding of criminal negligence causing death. R. v. Wood The roof of the Algo Centre Mall in Elliot Lake, Ont., collapsed in June 2012, resulting in deaths of two civilians. Robert Wood was one of several engineers involved in inspecting the mall. OHS: Ontario OHS charges commenced against the engineer for endangering a worker as a result of providing negligent advice and working in a manner that may endanger a worker. The charges may still be pending, but it's unlikely to proceed due to a delay and the Charter right to "trial within reasonable time." Criminal Code: Wood was charged with criminal negligence causing death under the Criminal Code. But the mere departure from an expected standard for prudent engineering or an error in judgment was not sufficient to establish criminal negligence. The Crown did not prove wanton and reckless or unrestrained disregard for the lives or safety of others. The criminal negligence charges were dismissed. R. v. Detour Gold and three supervisors In June 2015, a worker was fatally injured due to acute cyanide intoxication, via skin absorption, while he was fixing a leak in the mine's refinement facility. OHS: Ontario OHS charges were withdrawn upon a plea by Detour Gold to the Criminal Code criminal negligence charge. Ontario OHS charges against three individuals relating to PPE, instruction and supervision were stayed due to delay and the violation of the Charter right to "trial within reasonable time." This decision is under appeal. Criminal Code: Detour Gold was charged with and pleaded guilty to criminal negligence causing death. A penalty of $1.4 million plus surcharge was imposed under the Criminal Code. The Criminal Code charges against the three supervisors were withdrawn upon the guilty plea by the corporation. R.v. Rainbow Concrete A Rainbow worker was driving a dump truck and was killed in February 2017 when an archway collapsed on top of the cab of the truck. OHS: Twelve OHS charges against Rainbow Concrete were withdrawn on the plea to criminal negligence Criminal Code: Rainbow and company owner Boris Naneff were charged. Rainbow pleaded guilty to criminal negligence causing death in February, 2019. The charge against Naneff was withdrawn. Rainbow was fined $1,000 by the court and was given 18 months to pay the worker's family a total of $200,000 ($150,000 in addition to the $50,000 the company had already provided to them).

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