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. Scrocca1, 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, this case dealt with an individual defendant, therefore, 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. The following cases are currently before the courts, and we await their resolution:

Case: Metron Construction

Facts: Four workers died when the swing stage they were using to repair balconies at a Toronto apartment building came apart, leaving them to fall 13 stories. A 5th worker was critically injured. 61 charges against Metron, the company supervisor, and scaffold supplier, Swing “N” Scaff were also laid by the Ministry of Labour. 

Status: Criminal proceeding are underway, a preliminary inquiry is scheduled for dates in April, May and September 2012. OHSA charges on hold until resolution of Criminal matter. 

Case: The Queen of the North 

Facts: Former BC Ferries navigating officer Karl Lilgert was charged with criminal negligence causing death, four years after two people drowned when the Queen of the North veered off course and sank off the northern tip of Vancouver Island. Fifty seven passengers and 42 crew members abandoned ship before it sank. Two passengers were never found and were declared dead. Mr. Lilgert pleaded not guilty to the charges. 

Status: A preliminary inquiry was completed in 2011. Trial dates have now been set for January 2013.

Case: Weyerhaeuser and the United Steelworkers 

Facts: A worker died when debris came loose and fell on him as he tried to clear a jam in a hopper full of wood debris at Weyerhaeuser's New Westminster sawmill. The Crown decided not to prosecute Weyerhaeuser for criminal negligence causing death, though WorkSafe B.C. later fined them for $297,000 in relation to the worker’s death. Unhappy with the Crown’s decision not to lay criminal charges, the United Steelworker’s Union decided to bring a private prosecution on the worker’s behalf. Over three days of hearings in October and November 2010, the union called 23 witnesses to give evidence before Judge Alexander who will allow the crown or a private prosecutor to pursue charges against Weyerhaeuser in this matter. 

Status: Charges were stayed by the Crown on August 24, 2011 after they took over the Prosecution. Gowlings is currently offering a seminar on Bill C-45 Liability: How to Protect Organizations and Senior Officers. 

For more information go to www.oshlaw.ca or contact Norm Keith at 1-866-862-5787, Ext. 85699 or norm.keith@gowlings.com or Anna Abbott at 1-866-862-5787, Ext. 87284 or anna.abbott@gowlings.com. 

For more information see: R. c. Scrocca, 2010 CarswellQue 10141, EYB 2010-179808 (C.Q.) 

Norm Ketih B.A., J.D., LL.M., CRSP, Partner, Gowlings 

Anna Abbott, B.A., LL.B., Associate, Gowlings