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Lack of attention to health and safety policies can put you in criminal hotseat, say experts

TORONTO, Ont. — Organizations from the C-level down must develop a better understanding and application of occupational health and safety policies in the wake of the passage of Bill C-45, say management labour and employment lawyer Christopher M. Andree, and occupational health and safety specialist Rosemary Waechter.

Andree and Waechter both spoke to attendees of SCL’s dinner event on Safety in the Workplace and New Legislative Penalties January 13.

Bill C-45, which helps ensure organizations are held accountable when they commit criminal offences, received Royal Assent on November 7, 2003. The bill was prompted by the 1992 Westray Mine disaster in which an explosion wrecked a Pictou County, Nova Scotia coalmine, killing 26 miners.

As a result, the provisions of Bill C-45 were then outlined in the Government’s November 2002 response to the 15th Report of the House of Commons Standing Committee on Justice and Human Rights on workplace safety and corporate liability.

Bill C-45 modernizes the law on the criminal liability of organizations to reflect the increasing complexity of today’s corporate structures, extending the application of the word “organization” to a variety of group structures, including a public body, a company or partnership.

“This is something that goes up the entire chain of responsibility,” said Andree, a management labour and employment lawyer with Crawford, Chondon & Andree LLP.

Bill C-45 has expanded the concept of corporate liability so that it’s no longer restricted to the specific actions of senior management, but involves, singly and collectively, everyone who works for, or who is affiliated with, an organization, including senior officers who may play an important role in organizational policy-making or are responsible for managing an important aspect of an organization’s activities.

The Criminal Code as a result now requires that individuals who have the responsibility to direct the work of others take all reasonable steps to prevent bodily harm arising from such work. Wanton or reckless disregard of this duty causing death or bodily harm would result in a charge of criminal negligence.

Andree said the duty scope of the bill is broad, so understanding and training must also be broad.

“It’s about as broad as you can get, i.e. affecting coworkers but also members of the public. The good news is that the threshold for liability is very high,” he said.

Bill C-45 has no direct effect on provincial/federal occupational health and safety legislation, and Andree suggests that in cases of workplace accidents that do not result in death, he believes the most common disciplinary route will tend to go to through health and safety legislation.

“The onus of due diligence (under this Bill) is on the prosecution throughout,” he said, noting that occupational health and safety legislation will probably tend to be the path of least resistance in many cases.

According to Rosemary Waechter, of the Occupational Safety Group, there are approximately 15 deaths per week that can be attributed to workplace causes, and despite occupational health and safety legislation on the books some companies still need to become better aware of the implications, now, of a work-related accident on the chain of responsibility.

She recommended a strong focus on performing due diligence, from auditing for occupational hazards, having a committee in place to establish and promote health and safety procedures, and duly recording workplace incidents, from preamble to follow-up.

The discipline issue, i.e. of firing for non-compliance of company safety procedures, must also be carefully considered.

So must informing contractors of the policies you have in place.

“If you are paying them, they are your employee,” says Waechter. “Contractors on your site (or even offsite) must sign off on your health and safety procedures,” she said.

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