Health and Safety Bulletin
“Westray Bill” is now Law
Bill C-45, the “Westray Bill”, was finally passed Nov 7, 2003. The bill amends the Criminal Code of Canada to hold corporations, their directors and executives accountable for their criminally negligent acts in the workplace.
Almost 10,000 workers in Canada die every year from illnesses and injuries sustained in the workplace. Three workers are injured every day on the job site. Corporate negligence is responsible for at least some of those fatalities and injuries.
Employers, directors, and managers of corporations and businesses control and direct work practices and work flow. Although most Canadian workers now have the right to refuse unsafe work, the right to know about workplace hazards and the right to participate in recommending health and safety improvements, employers bear the
largest responsibility to ensure workplaces are safe. It is only appropriate that employers be held criminally responsible for tragedies that occur either because of their actions or their lack of actions. The new bill makes it possible to find criminal negligence for things such as failure to provide appropriate training, not insisting on documented safe
work practices, or not holding supervisory staff or management staff accountable for their responsibilities.
Although the Ontario Occupational Health and Safety Act allows for individuals to be fined up to a maximum of $ 25,000, or up to a year in jail and corporations to be fined up to $ 500,000, a Criminal Code conviction of criminal negligence causing death carries a maximum of life imprisonment. Even in cases where maximum fines
or imprisonment are not the result of a successful charge under the new law, the stigma of a Criminal Code conviction and record may be a better deterrent than prosecutions under provincial health and safety legislation.
When speaking on behalf of the bill in the Legislature, Victoria NDP MPP Peter Mancini said, “Accidents can happen as a matter of chance, but when they happen because a corporation has determined that the lives of its workers are not a factor in determining the balance sheet, then it’s time for us to say that it is a crime.”
Bill C-45 states, “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”.
It also says an organization is a party to an offence if a “representative” commits an offence while acting in the scope of their authority, and the senior officer(s) of the organization depart “markedly” from the standard of care that would have prevented the offence from occurring. Representatives include
people with authority to make day-to-day decisions—directors, partners, employees, members, agents, or contractors of the organization.
Bill C-45 arose in response to Nova Scotia’s 1992 Westray mine disaster in which 26 miners were killed in an underground explosion that occurred despite repeated safety warnings to the mine’s owners and managers. The mine had opened only eight months before the disaster, and the non-unionized workers were in the midst of an
organizing drive hoping that the union would force the employer to operate a safer mine.
The Nova Scotia government spent six years investigating the disaster to discover the factors responsible for the tragedy and to make changes to protect miners from incidents like this. Justice K Peter Richard said, in 1997, when the report was released, “The Westray story is a story of incompetence, of mismanagement, of
bureaucratic bungling, of deceit, of ruthlessness, of cover-up, of apathy, of expediency, and of cynical indifference.”
For more than 12 years, the United Steelworkers fought for the changes, testified at the public inquiry held in the mid 1990’s, and lobbied government to implement the recommendations from the inquiry. Other unions, individual union members, the Ontario Federation of Labour and the Canadian Labour Congress also lobbied hard
for the bill. The Steelworkers in particular, must be commended for their tenacious struggle to ensure that employers will be held responsible under the Criminal Code when they choose to ignore potentially life-threatening health and safety issues.
Although Canada’s new legislation is the first of its kind in North America, there is a movement in the United States to implement similar legislation. Great Britain and Australia already have similar legislation.
At this point, unions face one troubling question -- how does Bill C-45 affect them and their members' responsibilities in the workplace? Because the definition section in the bill includes 'unions' in the definition of 'organization,' and the bill itself sets out that 'an organization can be a party to an offence,' it is
clear that the legislators considered that unions might have some liability in a criminal negligence case. However, the scope of that liability is yet to be defined.
For more information, contact OPSEU’s Health and Safety Unit: 1-800-268-7376, 416-443-8888, ext. 772 or 774. Check the OPSEU website at www.opseu.org for future bulletins and updates.
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