On March 31, 2004, the Government of Canada amended the Criminal Code by way of Bill C-45. This Bill established new legal duties that apply to workplace health and safety, and established penalties for violations that result in injury or death.
Even though Bill C-45 became law in 2004, too few organizations and their senior officers and employees are aware of or understand its potential impact.
The Bill provided new rules for attributing Criminal Code liability to organizations, including corporations, their representatives and those who direct the work of others for some Occupational Health and Safety (OH&S) violations. That could mean that directors, representatives or senior officers could be charged criminally for certain violations.
Bill C-45 added section 217.1 to the Criminal Code, which reads:
“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.”
This created a new crime of OH&S criminal negligence, which produced a new and somewhat complicated regime for establishing organizational guilt across Canada.
OH&S criminal negligence for an organization is established where, acting in the scope of their authority, one or more representatives commits the offence of OH&S criminal negligence and a senior officer departs markedly from the standard or care that could reasonably be expected to prevent a representative from committing the offence.
OH&S criminal negligence is established for an individual where that individual, in undertaking to direct how another person does work, contravenes his or her duty to take reasonable steps to prevent bodily harm and shows wanton or reckless disregard for the lives or safety of others.
In addition, Bill C-45 added sections 22.1 and 22.2 to the Criminal Code. These sections can serve to impose criminal liability on “organizations” their “representatives” and “senior officers” for negligence and other offences if the organization is found to be “a party to the offence.”
It is also possible that a company and its representatives and senior officers could both be charged under Alberta or British Columbia’s provincial OH&S Act and the Criminal Code at the same time.
The consequences of a conviction can be devastating to a business.
If an organization is convicted, the contravention can attract an unlimited fine for an indictable offence. The organization would also have a criminal record. The fine is not tax deductible, and damage to the business reputation of the company could be significant.
If found criminally responsible, the representatives and senior officers are exposed to substantial penalties and lengthy prison sentences. Fines in the six-figure range are not uncommon.
If convicted of criminal negligence causing death, the offender faces the possibility of life in prison. The Criminal Code also allows for payment of victim surcharges under appropriate circumstances. Considerable penalties are also possible under the provincial OH&S Acts. Alberta’s Act provides for fines of up to $1 million for repeat offenders, as well as the possibility of imprisonment. Even a first offence can attract a maximum penalty of $500,000. Where the offence continues, the person contravening the Act faces additional fines of $30,000 per day for a first offence, or $60,000 per day for a repeat offender.
There are clear and simple ways for organizations to limit their potential liability under the relatively new provisions of the Criminal Code: employers need to implement effective workplace health and safety programs; they need to understand their legal obligations under occupational health and safety laws and standards; and they need to understand and address what hazards exist and how to effectively reduce or eliminate those hazards.
This article is intended to be a broad overview of a potentially significant piece of legislation that can have a dramatic impact on organizations and their representatives. It highlights the legal duty for all persons directing the work of others to take reasonable steps to ensure the safety of workers and the public.
It applies equally to federal, provincial and municipal governments, corporations, private companies, charities and non-governmental organizations.
Bill C-45 represents a significant exposure to corporations, their representatives and those who direct the work of others. It creates criminal responsibility, and therefore needs to be understood and avoided.
Ken Haluschak is a senior partner with Bryan & Company LLP in Edmonton. In addition to practising OH&S law, he is also a member of Bryan & Company’s litigation and insurance practice groups.
