Supervisor Facing Criminal Charges Related to Workplace Health and Safety 'Under Bill C-45'

HRinfodesk---Canadian Payroll and Employment Law, September 2004

It was recently reported in the press that a 68-year-old construction supervisor in Ontario became the first person in the country charged under the new Health and Safety criminal liability of organization under the Criminal Code (Bill C-45). Domenico Fantini, of Newmarket, Ontario, was arrested by York Regional Police and charged with criminal negligence causing death on August 26, 2004. Mr. Fantini is scheduled to appear in court on September 28. If convicted, he could face up to life in prison.

On April 19, 2004, Mr. Fantini was supervising two workers who were repairing a drainage problem in the foundation of a house when the trench they were working in collapsed. Ameth Garrido, a 38-year-old Toronto man, was in the trench when the ground gave way and was trapped by heavy dirt. Mr. Fantini desperately clawed at the ground, trying to rescue his co-worker, but couldn't get to him. By the time emergency workers arrived on the scene, Garrido died. The Ontario Ministry of Labour spent months looking into the incident, and their conclusion has led police to believe there’s cause to charge the 68-year-old with criminal negligence causing death.

The new provisions in an Act to amend the Criminal Code (criminal liability of organization) which came into force last March, increases the risk of exposure to criminal liability in respect of workplace health and safety above and beyond the existing obligations and liabilities under Occupation Health and Safety legislation. The Act imposes a duty on employers and those with the power to direct how others work to take reasonable steps to ensure the safety of the persons performing the work as well as the public nearby. It clearly defines responsibility for safety in the workplace and allows for prosecution under charges of criminal negligence when those responsibilities are recklessly or willfully disregarded. The Criminal Code states "Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task." In general, for an organization to be found guilty of committing a crime of negligence, the evidence will have to show that employees of the organization committed the act and that a senior officer should have taken reasonable steps to prevent them from doing so. In offences based on negligence, the court must determine whether an individual acted so carelessly or with such reckless disregard for the safety of others as to deserve criminal punishment.

Norman Keith, a partner at the Toronto law firm of Gowling Lafleur Henderson and author of Workplace Health and Safety Crimes, said "the charges send a message that the amendments ushered in by Bill C-45 are real and they will be enforced... It’s definitely a wake-up call for employers of all kinds, not just construction, that (the law) is going to be aggressively enforced by the police, probably with the encouragement or assistance of health and safety regulators, ...It’s also a big wake-up call for supervisors and managers to say ‘Look. Bill C-45 puts you personally at risk, not just the president of the company.’ And I think they’re at greater risk than a senior executive or a director. Because the police on the ground are going to say, ‘Okay, something awful has happened. Who is in charge here?’ And the most proximate, closely-related person in charge is going to get the most scrutiny."

Employers need to ensure that they have implemented good workplace health and safety policies and practices, including employer due diligence. They must also ensure that these practices are being consistently followed by senior officers, employees and all other representatives of their company. A review of health and safety policies and practices is highly recommended - including thorough training and education - to ensure they are complying with the Act.

By Yosie Saint-Cyr, Editor at HRinfodesk

Published on HRinfodesk---Canadian Payroll and Employment Law

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