Many will remember the tragic workplace deaths that
occurred on Christmas Eve, 2009 after a project manager put company profits
ahead of workplace safety. The workers involved had been on a swing stage, doing
work on a high-rise in Toronto.
occurred on Christmas Eve, 2009 after a project manager put company profits
ahead of workplace safety. The workers involved had been on a swing stage, doing
work on a high-rise in Toronto.
The company had a year-end deadline to complete a
high-rise project. It was late December and the project was behind schedule. The
deadline was looming. Despite the fact that it was both industry practice and the legal duty of an employer/manager
to ensure there are separate means of protecting each worker on a swing stage
from a fall, the workers were not given adequate safety equipment – there were
only two safety harnesses for the six workers involved.
high-rise project. It was late December and the project was behind schedule. The
deadline was looming. Despite the fact that it was both industry practice and the legal duty of an employer/manager
to ensure there are separate means of protecting each worker on a swing stage
from a fall, the workers were not given adequate safety equipment – there were
only two safety harnesses for the six workers involved.
When the swing stage collapsed, four of the workers
fell to their deaths. A fifth worker survived the fall, but suffered grievous
injuries. The sixth worker had a safety harness and was unharmed. The project
manager was found guilty and sentenced
for criminal negligence.
fell to their deaths. A fifth worker survived the fall, but suffered grievous
injuries. The sixth worker had a safety harness and was unharmed. The project
manager was found guilty and sentenced
for criminal negligence.
Why
did this happen?
did this happen?
The court examined why the workers didn’t all have
safety equipment and found that obtaining the necessary safety equipment would
have resulted in some delay. Given that there was a tight deadline, the project
manager weighed the benefit to the company of having the work done on schedule
against the risks to worker safety. The project manager decided in favour of
the company benefit. He was found guilty of four counts of criminal negligence
causing death and one count of criminal negligence causing bodily harm.
safety equipment and found that obtaining the necessary safety equipment would
have resulted in some delay. Given that there was a tight deadline, the project
manager weighed the benefit to the company of having the work done on schedule
against the risks to worker safety. The project manager decided in favour of
the company benefit. He was found guilty of four counts of criminal negligence
causing death and one count of criminal negligence causing bodily harm.
Sentenced
to 3½ years
to 3½ years
The project manager had a legal duty to ensure the
safety of the workers via the Criminal
Code. Section 217.1 of the Code imposes a legal duty on everyone who has
the authority to direct how another person does work or performs a task “to
take reasonable steps to prevent bodily harm to that person or any other person
arising from that work or task”. The project manager had failed in that duty.
safety of the workers via the Criminal
Code. Section 217.1 of the Code imposes a legal duty on everyone who has
the authority to direct how another person does work or performs a task “to
take reasonable steps to prevent bodily harm to that person or any other person
arising from that work or task”. The project manager had failed in that duty.
During sentencing the court noted that this was not a
typical case of criminal negligence. This case involved a manager who made an
informed decision to ignore the safety of workers. There was thus, in the
court’s opinion, a high degree of “moral blameworthiness.”
typical case of criminal negligence. This case involved a manager who made an
informed decision to ignore the safety of workers. There was thus, in the
court’s opinion, a high degree of “moral blameworthiness.”
Due to
the egregious conduct of the project manager and the tragic consequences of his
negligence, the Court deemed it fitting to impose a sentence that would send a
strong message to employers across the country, stating: “A
consideration of all of the circumstances can lead only to the conclusion that
a significant term of imprisonment is
necessary to reflect the terrible consequences of the offences and to make it unequivocally clear that persons
in positions of authority in potentially
dangerous workplaces have a serious obligation to take all reasonable steps to ensure that those who arrive for work in
the morning will make it safely back to their homes
and families at the end of the day.”[1]
the egregious conduct of the project manager and the tragic consequences of his
negligence, the Court deemed it fitting to impose a sentence that would send a
strong message to employers across the country, stating: “A
consideration of all of the circumstances can lead only to the conclusion that
a significant term of imprisonment is
necessary to reflect the terrible consequences of the offences and to make it unequivocally clear that persons
in positions of authority in potentially
dangerous workplaces have a serious obligation to take all reasonable steps to ensure that those who arrive for work in
the morning will make it safely back to their homes
and families at the end of the day.”[1]
Justice MacDonnell
sentenced the project manager to 3.5 years in prison.
sentenced the project manager to 3.5 years in prison.
Commentary
This case marks the first time the so-called Westray Law has been used in Ontario to
sentence an offender. The Westray Law is found in section 217.1 of the Criminal Code and was first enacted
through Bill C-45 in 2004. Bill C-45 was also known as the “Westray Bill”.
sentence an offender. The Westray Law is found in section 217.1 of the Criminal Code and was first enacted
through Bill C-45 in 2004. Bill C-45 was also known as the “Westray Bill”.
This law was
created as a result of the 1992 Westray coal mining disaster in Nova Scotia
where 26 miners were killed after methane gas ignited, causing an explosion. Prior
to the explosion, employees, union officials and government inspectors had all
raised safety concerns. The company largely ignored the stated safety concerns.
created as a result of the 1992 Westray coal mining disaster in Nova Scotia
where 26 miners were killed after methane gas ignited, causing an explosion. Prior
to the explosion, employees, union officials and government inspectors had all
raised safety concerns. The company largely ignored the stated safety concerns.
After the disaster,
the province tried and failed to secure a conviction against the company and/or
its managers. No one from the company was properly held to account for the
negligent safety standards at the mine. A Royal Commission investigated the
disaster and made recommendations. These recommendations, ultimately led to
Bill C-45, which was enacted roughly 12 years after the disaster.
the province tried and failed to secure a conviction against the company and/or
its managers. No one from the company was properly held to account for the
negligent safety standards at the mine. A Royal Commission investigated the
disaster and made recommendations. These recommendations, ultimately led to
Bill C-45, which was enacted roughly 12 years after the disaster.
The road to the
enactment of Bill C-45 was long and politically complex. With the lengthy
delays in enacting the bill, it’s impossible to say whether Bill C-45 would
have come into being had it not been for the NDP’s unflagging demand for
corporate criminal liability laws to protect workplace safety. In the years
following the Westray disaster, the NDP tabled several private members’ bills
urging corporate criminal liability laws.
enactment of Bill C-45 was long and politically complex. With the lengthy
delays in enacting the bill, it’s impossible to say whether Bill C-45 would
have come into being had it not been for the NDP’s unflagging demand for
corporate criminal liability laws to protect workplace safety. In the years
following the Westray disaster, the NDP tabled several private members’ bills
urging corporate criminal liability laws.
The labour movement also kept the
pressure on legislators, publicly calling for heightened workplace safety laws.
When Bill C-45 was passed, then NDP leader, Alexa McDonough acknowledged the
important of the unions to the development of these legislative safety
protections, stating that the United Steel Workers: “…
poured their heart and soul, blood and guts into pressing for the kind of
changes in law, the changes in
health and safety practices in Nova Scotia and across the country, that would ensure never again would there be an
occurrence permitted in this country such as
what happened at Westray.”[2]
pressure on legislators, publicly calling for heightened workplace safety laws.
When Bill C-45 was passed, then NDP leader, Alexa McDonough acknowledged the
important of the unions to the development of these legislative safety
protections, stating that the United Steel Workers: “…
poured their heart and soul, blood and guts into pressing for the kind of
changes in law, the changes in
health and safety practices in Nova Scotia and across the country, that would ensure never again would there be an
occurrence permitted in this country such as
what happened at Westray.”[2]
The bills introduced
by the NDP became a model for bill C-45. While the final version of the bill C-45
is less fulsome than any of the bills proposed by the NDP, it made positive
reforms to the Criminal Code and
stands as a victory of political action in response to a crisis of national
significance.
by the NDP became a model for bill C-45. While the final version of the bill C-45
is less fulsome than any of the bills proposed by the NDP, it made positive
reforms to the Criminal Code and
stands as a victory of political action in response to a crisis of national
significance.
Some will consider a
3.5 year period of imprisonment to be too lenient given that lives were
destroyed through the project manager’s criminal negligence. Others will argue
that the sentence is too harsh and that the project manager should be sentenced
to minimal, if any, prison time. Wherever you stand on the spectrum, one thing
is clear: this case stands for the proposition that the courts are prepared to
enforce laws that protect workers from employers who seek to maximize profit at
the expense of safety.
3.5 year period of imprisonment to be too lenient given that lives were
destroyed through the project manager’s criminal negligence. Others will argue
that the sentence is too harsh and that the project manager should be sentenced
to minimal, if any, prison time. Wherever you stand on the spectrum, one thing
is clear: this case stands for the proposition that the courts are prepared to
enforce laws that protect workers from employers who seek to maximize profit at
the expense of safety.
This increased focus
on workplace safety is a victory for everyone. We hope this judgment can
provide some small solace to those affected, and also to the victims of the Westray
mining disaster who were not able to see justice done for their loved ones.
on workplace safety is a victory for everyone. We hope this judgment can
provide some small solace to those affected, and also to the victims of the Westray
mining disaster who were not able to see justice done for their loved ones.