Newfoundland and Labrador’s provincial police service, the Royal Newfoundland Constabulary (the “RNC”), has recently begun working with the Calgary Police Service to change how investigations of workplace incidents will be instituted. It officially announced that it will be conducting criminal investigations at every workplace where a serious injury or death occurs. This new protocol differs from the role played by the RNC the in past which would generally see police securing the scene so that Occupational Health and Safety (“OHS”) could conduct its investigation. The announcement comes after a recent fatality at a construction site in St. John’s where the RNC have publicized taking the lead in the investigation rather than leaving it to provincial OHS officials.

This new protocol has not been seen before in Atlantic Canada. In New Brunswick, Nova Scotia and Prince Edward Island, OHS is the primary investigator to all workplace incidents and only defer to police agencies when required to do so.

The RNC cited the “Westray Amendments” as the reason for the shift.  Bill C-45, or the “Westray Bill,” originated out of Nova Scotia following a Royal Commission of Inquiry established to investigate the tragic 1992 disaster at the Westray coal mine. An explosion at the mine resulted in the death of 26 workers.  In that case, the prosecution of two managers of the mine was abandoned. The “Westray Bill”, which amended the Criminal Code, established new rules for attributing criminal liability to corporations, their representatives and those who direct the work of others.

The “Westray Amendments” are not new law and in fact, have been in force since 2004.  Readers may recall the well-known case of R v Metron Construction Corporation, 2013 ONCA 541 (“Metron”) which involved the tragic deaths of four workers (and serious injury of another) who fell from the fourteenth floor of a high rise building in Toronto in 2009. The workers fell while they were conducting exterior repairs from an overloaded swing stage, a type of suspended platform. In that case, the employer, Metron Construction, pled guilty to criminal negligence causing death, as set out in the Criminal Code, and received a fine of $200,000.00 at trial. The fine was more than tripled to $750,000.00 by the Ontario Court of Appeal. Metron Construction’s project manager was sentenced to 3.5 years in jail (discussed in one of our earlier publications), a decision which was recently upheld by the Ontario Court of Appeal.  Furthermore, Metron Construction’s director pled guilty to four counts under Ontario’s OHS legislation.

What About OHS Legislation?

In addition to the Criminal Code, OHS legislation continues to impose legal obligations on employers with respect to occupational health and safety. Both statutes operate independently and, as can be seen by the Metron case referenced above, employers and those directing the workforce can be charged under either the Criminal Code or OHS legislation. While OHS legislation sets out imprisonment as a possible penalty, a breach of the legislation has typically resulted in a fine.

Lessons for Employers

As noted above, the Criminal Code provisions imposing criminal liability on employers with respect to workplace incidents is not new. The RNC’s recent announcement however, should serve to remind employers of their legal obligation to safeguard the health and safety of their employees. There is no time like the present for employers to be proactive in reviewing their existing health and safety programs and policies and revising where necessary.