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Prosecution of workplace fatality emphasizes job safety in Canada

Quebec employer's conviction opens door to criminal liability

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ST.-JEROME, Quebec—The first corporate conviction since Canada expanded criminal liability for workplace accidents may spur more charges against employers and create a powerful incentive to improve workplace safety, risk managers and employment lawyers say.

In March, St.-Eustache, Quebec, manufacturer Transpave Inc. became the first Canadian corporation to be convicted of criminal negligence under an amendment to Canada's criminal code in the fatal injury of an employee in an October 2005 workplace accident.

The employee was crushed by equipment while trying to move concrete blocks, an accident that could have been prevented had the security system not been neutralized, prosecutors charged.

The amendment, known as Bill C-45, has been in effect since March 2004. It imposes a legal duty on organizations and supervisors to take reasonable measures to protect employee and public safety. Wanton or reckless disregard of this duty that causes bodily harm or death can result in a charge of criminal negligence.

"It certainly resulted in an acute increase in the potential liability for not doing what you need to be doing," said Nowell Seaman, manager of risk management and insurance services at the University of Saskatchewan in Saskatoon.

In pleading guilty to criminal negligence, Transpave acknowledged that it failed in its duty of care imposed by Canada's Occupational Health and Safety Act to foresee the risks and apply appropriate safety measures, according to court documents. The company also had an obligation to adequately train its employees on safe workplace methods and failed to ensure that employees respect safety measures put in place, according to court documents. Transpave and its attorney did not respond to requests for comment.

"The introduction of charges and these developments certainly are a wake-up call to people not giving a diligent effort to occupational health and safety," Mr. Seaman said.

The corporation was fined about $110,000 Canadian ($110,462) for the fatal incident, an amount that was lower than union officials believed it should have been. The judge said he did not impose a higher fine because the company admitted its fault for the accident, spent more than $750,000 Canadian ($753,150) to correct the situation and complied with all recommendations of workplace safety regulators, according to court records.

Transpave benefited from taking quick action to rectify the situation and spending a substantial sum of money to do so, said Norm Keith, a Toronto-based partner in the employment and labor group of Gowling Lafleur Henderson L.L.P. "You have nothing to lose and everything to gain by being responsible," he said. "You can improve the situation without admitting legal liability."

The conviction will remove some reservations police and prosecutors may have had about filing C-45 charges, Mr. Keith said. The publicity surrounding the Transpave case also will increase pressure from the public, families of workplace accident victims and unions to file C-45 charges, he said. "The awareness of the conviction has opened the door to more cases being looked at closely," Mr. Keith said.

The conviction, though, does not automatically create an opening for more prosecutions under C-45, given that the vast majority of prosecutions take place under provincial statutes governing occupational health and safety, observers say.

"I don't think there will be any change," said Robert Patzelt, group corporate counsel and risk manager for Bedford, Nova Scotia-based Scotia Investments Ltd. "The fact that there's been a conviction to me only says the statute works."

The response to C-45 has varied, with many companies making safety a priority from the boardroom to the production floor while others continue to have inadequate safety programs, said Kevin MacNeill, a partner with the labor and employment practice of Heenan Blaikie L.L.P. in Toronto.

"There are companies that take occupational health and safety obligations seriously and continue to improve on that in the post-C-45 world. Unfortunately, there are others who don't," Mr. MacNeill said.

Before C-45 was passed, some risk managers had already taken steps to ensure safe workplaces, although they may have received "an extra boost" from the law and the conviction that has increased awareness of potential individual and company liability for workplace accidents, Mr. Patzelt said. "I think they may have had a surge of interest and additional resources going their way," he said.

Risk mitigation steps include training senior officers on C-45 and provincial occupational health and safety laws, informing them of legal developments and training all employees and supervisors. A written policy that outlines every step of the production policy, identifies specific hazards and details the use of protective equipment and safety procedures is critical, lawyers say.

"This is one very powerful additional incentive to making sure you are doing your due diligence," Mr. Seaman said.