In one of the most high profile workplace incidents of recent memory, both Occupational Heath and Safety Act and Bill C-45 Criminal Negligence charges have been laid against various workplace stakeholders. The tragic incident, involving the death of four workers, seemed heightened in both emotional and media coverage, because it happened on Christmas Eve, 2009. However, this case – and the reaction of Ontario’s Ministry of Labour and Ministry of the Attorney General, which resulted in numerous charges under the Occupational Heath and Safety Act as well as Bill C-45 amendments to the Criminal Code – raises concerns about too much emphasis on blame and criminality, and too little on prevention.
Metron Construction Corporation and three individuals related to the company have each been charged with criminal negligence causing bodily harm and four counts of criminal negligence causing death. This is part of a growing trend of police investigation and criminal charges relating to workplace injury and death arising from the Bill C-45 amendments to the Criminal Code.
The charges arise from the deaths of four migrant workers and the critical injury of another following the collapse of a swing stage scaffold on the 13th floor of a Toronto apartment building on Christmas Eve of 2009. The incident received national media attention when the workplace tragedy occurred. The Government of Ontario appointed the University of Toronto’s Tony Dean to conduct an inquiry into the province’s workplace safety prevention initiatives after this incident.
A crew of six men were working on repairing the balcony at 2757 Kipling Avenue when the incident occurred. As a seventh worker attempted to step onto the swing stage, it broke into two pieces and four workers fell to their death.
This past August, 61 Occupational Health and Safety Act (“OHSA”) charges were laid against various parties as a result of this accident. 30 charges were laid against Metron Construction Corporation, with an additional 16 against a Metron senior manager and eight against a supervisor. Furthermore, the company that supplied the work platform, Swing ‘N’ Scaff Inc., faces four charges with its director facing an additional three charges.
The Ministry of Labour has never laid any OHSA charges against Metron in its 23 years of operation. However, eight orders, including some dealing with swing stages, had been issued to Metron Construction at the job site in question in the two months leading up to the deadly incident.
These charges mark the fifth time that a corporation or an individual has been charged with a contravention of the Bill C-45 amendments to the Criminal Code. To date, none of these cases have proceeded to trial. Bill C-45 was the legislative reaction of the federal government to the Westray Mine disaster. In May, 2002, 26 miners died when an explosion and fire ripped through that coal mine in Pictou Country of Nova Scotia. Criminal charges in that case were thrown out at trial due to prosecutional misconduct.
The purpose of the Occupational Heath and Safety Act, the proactive prevention of workplace incidents, injuries, and death, may be lost in this layering of regulatory and criminal charges. The internal responsibility system, the overarching concept behind the legislation, is intended to encourage all workplace stakeholders, including workers, to take responsibility for their health and safety. However, the prosecutorial reaction in this case has focused on blame and not prevention.
Regardless of the outcome of all of the charges, both under the OHSA and the Criminal Code, one thing is certain, prosecutions do not prevent accidents directly or indirectly. They merely provide a general deterrent or fear of reprisal, which may motivate but not empower organizations to prevent further incidents in the future.
Although this tragic case will hopefully be an example to employers, it is important to invest in health and safety management systems, and in health and safety training and prevention, so prosecutions themselves do not speak to the HOW regarding prevention.
It is unfortunate that current government, political and regulatory climate does not encourage and motivate employers in a positive way by providing resources on the HOW but rather focusing on a culture of blame.