A Federal District Court Judge in West Virginia has sentenced former Massey Energy Company CEO, Donald Blankenship, to the maximum allowable sentence after his conviction by a jury last fall. The judge ordered Blankenship to serve one year in prison and to pay a fine of $250,000. The case is under appeal.

In 2010, there was an explosion at a Massey mine which resulted in the deaths of 29 people. This horrific incident prompted officials to investigate and prosecute Blankenship, not for a direct responsibility for the accident, but for conspiracy to violate federal safety mine standards.

Blankenship was acquitted of several felony charges at his trial. The trial evidence showed that Blankenship had a wealth of knowledge of the Massey mines. He received production reports every 30 minutes and recorded many of his telephone conversations with his subordinates. With his focus on Massey’s finances, the prosecution argued that there was an “unspoken” conspiracy that prioritized profits over safety standards and practices. The defence countered that “at worst,” Blankenship knew about the safety violations and did not take sufficient steps to prevent them.

What might happen in Canada with similar facts?

Provincial health and safety laws impose obligations on individual supervisors, directors and officers. The term “supervisor” is defined as one who has charge of a workplace or authority over a worker. Who fits within that definition is based on an individual’s actual powers and responsibilities, and not on his or her title. It includes someone with hands-on authority to promote, discipline, schedule work and address employee complaints. It also includes the manager of a transportation system with responsibility for over 400 workers, with ultimate authority over budget and scheduling. Provincial laws are aimed at prevention – there does not need to be an injury or worse for there to be a breach and a prosecution.

Over a decade ago, Canada amended the Criminal Code to create a criminal law duty on those who have the authority to direct how another person does work or performs a task to take reasonable care to prevent harm to the workers or to any other person. This is similar to the provincial language. For a federal prosecution to occur, there must sadly be an injury or death, and the charge is criminal negligence causing injury or death. This section has been used sparingly since it was brought in. As we have written earlier, most recently, an Ontario court found a project manager guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. The charges stemmed from a 2009 Christmas Eve swing stage collapse at a highrise building. There were insufficient lifelines for the number of people on the swing stage, including the project manager who managed to escape injury. The court sentenced the defendant to three and a half years in prison on each count, to be served concurrently. The case is under appeal.

It appears from articles on the Blankenship case that he was a very hands on CEO and was intimately aware of everything that went on at this mine. It also appears that he was aware of ongoing safety violations and did not prevent them. In Canada, that could be seen as a breach of both provincial and criminal laws. In injury or death situations, it is not uncommon to face two sets of charges, with a plea to one set resulting in withdrawal of the other charges.

There is no doubt that such prosecutions will continue to receive the attention of courts in both the U.S. and in Canada. In the meantime, even companies and their people with the enviable safety record of the Canadian energy industry should ensure that they are satisfied that they are aware of potential safety risks and the ongoing steps being taken in the company to address those risks.