Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people���s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

KOOTNEKOFF: The Westray Provisions: Criminal Responsibility for Workplace Safety

It was one of the worst mining disasters in Canadian history, and it resulted in important changes to the Criminal Code.

In 1992, an explosion at Westray Mine’s underground coal mine in Nova Scotia killed 26 underground workers.

A 1998 public inquiry report harshly criticized Westray mine management. It found “a complex mosaic of actions, omissions, mistakes, incompetence, apathy, cynicism, stupidity, and neglect.”

Despite the inquiry, a litany of charges under provincial occupational health & safety legislation, extensive police investigations, and attempts to criminally prosecute two mine managers, no one was ultimately held legally responsible for the workers’ deaths.

Canadians widely perceived our justice system to have failed.

Following a public outcry, in 2004 the federal government amended the Criminal Code to create a new legal duty relating to workplace safety. Even in legal circles to this day, these are commonly referred to as the “Westray provisions.”

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Section 217.1 of the Criminal Code states this legal duty:

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 is important to know that “every one” is defined broadly. It includes a public body, body corporate, society, company, firm, partnership, trade union, municipality, and certain associations.

Section 22.1 of the Criminal Code outlines when the organization is a party to negligence offences. There are more ins and outs, but essentially, the organization becomes a party when a senior officer responsible for that area, or the senior officers collectively, depart markedly from the standard of care that could be expected of them in the circumstances.

“Senior officer” is defined broadly. It includes anyone who plays an important role in setting policy or is responsible for managing an important part of the organization’s activities. It specifically includes corporate directors, CEOs and CFOs.

This means that anyone from the directors, CEO and CFO to a supervisor of a department may potentially be a “senior officer”. In other words, any of these individuals could potentially create criminal liability for the organization.

Following a safety infraction, this means that an organization, or its supervisors or representatives, could be charged with criminal negligence.

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Anyone with the authority to direct work could potentially be charged.

Notably, the duty is owed to workers, and also to any other people. This includes members of the public who may enter the worksite, and members of the public who may otherwise be affected by the work.

The burden of proof in criminal offences requires that the offence be established beyond a reasonable doubt. This is a higher standard than applies in occupational health and safety proceedings.

Generally, a convicted organization is ordered to pay a fine, since it can not be imprisoned.

Upon being convicted, in summary conviction cases, an organization may face a fine of up to $100,000. If the Crown proceeds by indictment, the fine against the organization has no limit.

When sentencing an organization, the court must consider several factors, set out in section 718.21 of the Criminal Code.

Other sentencing options include imprisonment and restitution to victims.

Directors’ and officers’ or other insurance is unlikely to cover any fines imposed.

These provisions exist alongside provincial occupational health & safety regulations.

To date, the Crown has been circumspect in applying these provisions.

However, as the 25th anniversary of the Westray disaster approached, the federal government announced its intention to “help ensure that the Westray provision is applied effectively”, and to “do more” toward this end.

“Millions of Canadians go to work every day, expecting to return home safely, and so they should,” it stated.

Next week, we will look at a tragic case in which a conviction occurred under the Westray provisions.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca . Check out our website, www.inspirelaw.ca.

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