In 6362222 Canada Inc. v Prelco Inc., 2021 SCC 39 (38904) (“Createch v Prelco“), the Supreme Court of Canada considered the issue of whether a limitation of liability clause in a contract between the two parties was invalid on the basis of the doctrine of breach of a fundamental obligation. The Court ultimately held that […]read more
Workplace Accident: Manager Sentenced to 3 ½ Years in Jail
On January 11, 2016 an Ontario court imposed the harshest sentence ever for an individual’s role in a workplace accident. A project manager was sentenced to three and a half years in prison for his role in four workplace deaths that occurred on December 24, 2009. On that date, six employees were repairing balconies on the 13thfloor of an apartment building when the swing stage they were working on collapsed. The four employees who died were not wearing safety harnesses. The Ontario Superior Court, in R v Vadim Kazenelson, 2015 ONSC 3639, found the project manager guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. Following this decision, the project manager was sentenced to three and a half years in jail, a result which is being appealed. In coming to this sentence, the judge relied on the following factsregarding the project manager’s role in the accident:
- the project manager was fully aware of the requirement that each worker needed to be secured by a lifeline harness;
- the project manager bore the ultimate responsibility for the workers’ safety on the day of the accident;
- the project manager had used the swing stage earlier that day and had actual knowledge of the fact that only two lifelines were available to the workers;
- evidence revealed that the project manager had vocally expressed his concern about the lack of lifelines and yet he took no steps to rectify this breach of the safety requirements.
The judge concluded that this was a case in which the project manager “did advert to the risk but decided that it was in [the company’s] interest to take a chance.” This was considered a seriously aggravating factor in relation to the moral blameworthiness of the project manager. The judge also weighed the gravity of the offence and the project manager’s degree of responsibility to conclude that a significant prison term was appropriate.
Criminal Charges, While Rare, are Real
Employers can be held criminally liable for health and safety failures. In 2004, the Criminal Code was amended to include new criminal offences which made it possible for organizations, including corporations, their representatives and those who direct the work of others, to be found criminally liable for workplace injuries or death which are caused by negligence (Section 217.1 of the Criminal Code).
These provisions of the Criminal Code affect all organizations and individuals who direct the work of others, anywhere in Canada. These organizations include federal, provincial and municipal governments, corporations, private companies, charities and non-governmental organizations.
The Occupational Health and Safety Requirements
In addition to criminal liability, all employers are subject to occupational health and safety legislation. Occupational health and safety legislation requires, among other things, that employers take every reasonable precaution to ensure the health and safety of employees and provide them with the information, instruction, training and supervision necessary to safeguard the employee’s health and safety. The occupational health and safety requirements differ depending on the province in which the employer is located, whether it is federally regulated, the particular work being performed by employees and the number of employees. An employer who fails to satisfy its obligations under health and safety legislation is guilty of an offence and could be subject to a hefty fine or a term of imprisonment.
Limiting Potential Liability
Employers can limit their liability and reduce the chances of being charged under the Criminal Code and/or occupational health and safety legislation by implementing an effective workplace health and safety program.
As an employer, you will want to:
- familiarize yourself with the applicable occupational health and safety obligations;
- know the hazards that exist in your workplace; and
- implement a plan to effectively reduce or eliminate them.
Employers should also ensure that employees are aware of the company’s health and safety program, are informed of any workplace risks, and receive appropriate training and protective equipment. By being diligent in health and safety requirements, employers not only protect themselves but are also protecting their employees.