A second employer has now been convicted of a Bill C-45 charge in Québec, Mr. Pasquale Scrocca, a landscape contractor in Québec, was found guilty of criminal negligence causing death with respect to a workplace incident resulting in the death of his employee, Mr. Aniello Boccanfuso. The judgment, R. c. Scrocca (2010 QCCQ 8218), marks the first trial decision examining the OHS criminal negligence provisions under the Criminal Code.
In 2004, Bill C-45 (also known as the “Westray Bill”) amended the Criminal Code imposing an OHS duty on individuals, organizations and their decision- makers across Canada. Bill C- 45, among other changes, established OHS negligence as a criminal offence. After a significant dormant period, there have recently been several instances of OHS criminal negligence charges being laid against individuals and corporations across Canada - the most publicized being those laid in connection with the deaths of four workers who fell from a faulty swing stage on Christmas Eve 2009.
Prior to the Québec decision, no other OHS criminal negligence case had proceeded to trial. The employee, in this case, was killed when a backhoe, driven by his employer, failed to brake and pinned him against a wall. At the time of the incident, the backhoe was being used to move soil as part of a landscaping job at a commercial building.
The court heard evidence about the mechanical fitness of the backhoe from expert witnesses who examined the machinery and from Mr. Scrocca, himself. The machinery in question was purchased in 1976 and had not undergone any regular maintenance since that time. The mechanical inspection after the incident found that the machine had absolutely no braking capacity in the front two wheels, no brake fluid in the reservoir, and an all-over braking capacity of less than 30%. The mechanical inspection also uncovered 14 additional major issues with the machine including the fact that the horn, brake lights, parking brake, and brake pressure gauge were not functional. The defendant admitted that a certified mechanic had not inspected the backhoe for at least five years and that he had failed to check the brake fluid in the previous year because the reservoir cap was broken.
The defendant advised the court that he did not contest the mechanical faults of the backhoe, but that he did not have the requisite mens rea, or intent, required to be found guilty of criminal negligence. The defendant argued that he was not aware of the braking issue because he had not witnessed any leaking fluid, nor did he notice reduced braking capacity in the time leading up to the accident. The defendant also argued that at the time of the accident, there were no regulations in place in the province of Québec requiring regularly scheduled maintenance for heavy equipment.
The court held that the intentions of Mr. Scrocca had no place in the analysis. The court explained that in criminal negligence cases there does not have to be a positive intention for the result of the act.
The court found that there was a clear breach of the duty of care imposed on an employer under s.217.1 of the Code – the duty to take reasonable steps to prevent bodily harm to a worker. As the owner of the vehicle, Mr. Scrocca had a duty to ensure that the vehicle was maintained in a safe condition. The backhoe had been used for 30 years with essentially no mechanical maintenance. The court found that in failing to maintain the vehicle, the defendant placed himself in a position where he could not be sure of its mechanical fitness. As a result, he would not know the risks associated with its use, which recklessly put the lives and safety of his workers in danger.
The court held that the defendant’s argument, that that machine was brought to a certified mechanic when there was a major problem, was not sufficient to meet the duty. Furthermore, the court held that the defendant’s reasons for his failure to perform regular maintenance on the backhoe, that is, that he did not observe any issues with the vehicle, was indefensible and unacceptable - a prudent person would make sure that the equipment was looked over at least annually and would not fail to check the brake fluid just because the valve was broken.
After a joint submission from the Crown and the Defendant on sentence, the Court imposed a conditional sentence of imprisonment of two years less a day. The sentence will be served in the community with conditions, including a curfew.
This case is the first trial decision under the Bill C-45 and serves to remind employers, supervisors, officers and directors that the OHS criminal negligence provisions carry a real risk of accountability.
Employers must be aware that neglect of OHS duties can lead to unlimited fines for the corporation and possible fines and jail time for individuals. Organizations must be proactive in assessing and managing workplace risk. Unfortunately, organizations and their senior officers will have to continue to wait for guidance from the court with respect to their duties and responsibilities under these provisions.