Transpavé Inc., a Québec manufacturer, is the first organization to be convicted under the Occupational Health and Safety ("OHS") Criminal Negligence causing death. In October 2005, a 23 year old employee of Transpavé Inc. was fatally injured after moving into an area where a machine was apparently jammed. The equipment was equipped with a lightbeam or curtain guarding system that was intended to stop the operation of the machine if the light-beam/curtain was broken. However, the guarding system failed and the worker was fatally injured.
The Criminal Code was amended on March 31, 2004, to establish a new positive duty on individuals and organizations to take "reasonable steps to prevent bodily harm" to workers, the public, and others involved in workplace activity. Bill C-45 amendments to the Criminal Code also significantly change the threshold for establishing guilt for an organization, including a corporation.
In the Transpavé case, the Québec Commission de la Santé et de la Sécurité Travail ("CSST"), investigated the workplace fatality. The CSST concluded that the light-beam/curtain system was disabled at the time that the accident occurred. The police became involved after the fatality and laid the Criminal Negligence causing death charges. The plea of guilty by Transpavé Inc, on December 7, 2007, was in contrast to their initial public reaction to the charges. Transpavé publically stated their intention to defend the charge at trial. However, the entering of a plea of guilty, pursuant to a plea bargain agreement, has now resulted in the first conviction under the Bill C-45 amendments of the Criminal Code for an organization in Canada.
The sentencing phase of the Transpavé prosecution is scheduled to take place on February 26, 2008. It remains to be seen what the scope of the penalty will be, especially in light of the fact that the Criminal Code provides for an "unlimited" fine for an organization, including a corporation like Transpavé, who is convicted of an indictable offence. Transpavé's plea of guilty and pending sentence are an important reminder to senior executives and their organizations of the legal risk when workplace incidents occur.
To reduce risk, organizations need to ensure the following:
- Establish and implement an effective occupational health and safety management system, and audit it regularly;
- Prevent accidents and injuries since individuals and organizations cannot be charged under the Bill C-45 amendments unless there is "bodily harm";
- Ensure compliance with applicable OHS statutes and regulations by an effective OHS management system.
For a detailed analysis of Bill C-45, and its compliance requirements, please see my book Workplace Health and Safety Crimes (Lexis-Nexis, 2004).