A new Federal law affecting Occupational Health and Safety applies over and above provincial regulations in the case of bodily injury and in the case of wanton and reckless disregard for the lives and safety of others. Bill C-45 amends the criminal code and ascribes the criminal liability of organizations and their representatives. These amendments result from the Westray Mine disaster inquiry recommendations.

Criminal liability for occupational health and safety offences committed by an organization and/or their representative(s) was added to the Criminal Code and brought in to force on March 31, 2004, in addition to current Provincial legislation.

Bill C-45 incorporates existing rules with new reforms that will reflect criminal responsibility of the organization and makes no change in the current law dealing with the personal liability of directors, officers and employees. Attributing criminal liability applies the same way to all forms of joint enterprises carried out by individuals, regardless of their structure within an organization.

OH&S now has a specific duty under the Criminal Code …. “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” .

Bill C-45 is not restricted by Provincial legislation. It can be applied whether or not charges are brought under Provincial laws. The Alberta OH&S Act has a statutory limit of two years in which to lay charges but the Criminal Code has no such limit.

The new definition of an organization is now much broader than it was for a corporation, now it includes a public body, body corporate, society, company, firm, partnership, trade union or municipality.

The new definition of a representative now includes a director, partner, employee, member, agent or contractor of the organization. It also defines that now even a lead hand or your contractor could trigger criminal liability to your organization if they direct a worker to take action that results in bodily injury.

The new definition of a senior officer states that the role of establishing policies and managing the enterprise makes the position responsible for OH&S.

In the case of wanton and reckless disregard for the lives and safety of others, the new legislation also prescribes penalties. In cases where a workplace incident results in bodily injury or fatality, the investigation may involve Provincial regulators as well as Federal regulatory authorities.

The maximum penalty for a representative in the case of a fatality is life imprisonment. The penalty for an organization on summary conviction is $100,000 and for an indictable offence has no monetary limit. A maximum penalty for a representative in the case of bodily injury is 10 years in jail.

An organization is party to an offence if: one of its representatives is party to it; two or more representatives are engaged by commission or omission; and the senior officer responsible departs markedly from the standard of care that could reasonably be expected.

A standard of care is established by reviewing requirements of Provincial and Federal legislation and by assessing common industry practices. In this case a test would be applied similar to determining due diligence obligations by asking “what should a reasonable person have done in the same circumstances”.

Steps to protect the organization and its representatives from criminal liability include: 

         • Ensuring an effective and verifiable OH&S management system is in place, as a legal defence before any occurrence. 

         • Validating that the organization is in compliance with Provincial and Federal OH&S Regulations. 

         • Establishing a formal record of current practices to ensure overall workplace safety meets the organizations OH&S objectives. 

         • Confirming that safe work practices and procedures are followed consistently. OASYS Canada would be pleased to provide information about conducting a gap analysis to determine the current state of safety management system.

OASYS Safety Consulting specializes in providing information and conducting a gap analysis to assist in determining the current state of the present safety management system.