A New Era of Criminal Law Enforcement for Workplace Safety in Canada - Part 1

Introduction

A recent case from New Brunswick involving the conviction of a site supervisor for criminal negligence causing death may signal a new era of criminal law enforcement for workplace safety in Canada. The case could have significant implications for employers and supervisors in high-risk industries if accepted in other jurisdictions. In this article, we delve into the basic facts of the case, analyze the trial judge’s approach, and explore the potential impact of the decision for employers and management teams.

The Case and Its Basic Facts

The case in question involves the tragic death of a young construction worker, Michael Henderson, who lost his life after being trapped in the bottom of a sump hole when a rubber plug from a water pipe released, trapping Henderson, and then dumping thousands of litres of water into the sump hole. The water from the pipe quickly reached above his head, and despite the frantic efforts of his co-workers to pull him free or provide rescue breaths underwater, the attempts failed, and he quickly drowned.

Henderson was employed by Springhill Construction Ltd. (Springhill) who had contracted with the City of Fredericton to expand their Wastewater Treatment Plant. Springhill had recently promoted Jason King (King) into the role of site supervisor. The rubber plug that released and contributed to Henderson’s death was owned by the City and loaned to Springhill. It was intended to be used to stop water that was trickling into the sump hole from the water pipe, but King decided to conduct a “leak test” of the piping system while Henderson was in the sump hole and without warning others of the potential hazards. The leak test built up pressure in the piping system and the rubber plug released into the sump hole trapping Henderson. Both Springhill and King were charged with criminal negligence causing death. King was recently convicted after trial. His sentencing was adjourned to September 2023. He has not appealed his conviction, nor does he need to until after he is sentenced. The case against Springhill has not yet gone to trial.

The Trial Judge’s Approach

1. The Standard of Conduct for Supervisors

One of the main issues in the trial was whether Jason King’s conduct as a supervisor constituted a “marked and substantial” departure from that of a reasonable supervisor in similar circumstances. King’s lawyers argued that he had only been promoted to supervisor a few months before the incident, and that his employer did not provide any training on how to be a supervisor. However, the trial judge rejected this reasoning and found a reasonable site supervisor in the circumstances would adhere to the following three basic elements:

• Familiarity with OHS legislation: supervisors must familiarize themselves with their duties under Occupational Health and Safety (OHS) legislation.
• Understanding the Site-Specific Safety Plans: supervisors must familiarize themselves with the site-specific safety plan for the work to be performed.
• Knowledge of the Manufacturer’s Instructions: supervisors must be aware of the basic manufacturer’s instructions relating to the equipment and tools used in the workplace.

The trial judge held these steps constituted “basic, fundamental elements” that a supervisor in similar circumstances would be expected to meet. In reaching this finding, the trial judge may have established a new minimum standard of conduct for supervisors, and those that fall below this minimal level are at risk for criminal prosecution.

2. Omitting to Perform Duties Imposed by Law

There have been relatively few criminal law prosecutions in Canada relating to workplace deaths since the Criminal Code was overhauled in 2004. Those amendments were made in response to the Westray Mine disaster and the inability of Canadian criminal law to hold those responsible for the deaths of 26 workers accountable for their negligent actions or omissions. Arguably, the most important amendment was the addition of s. 217.1 to the Criminal Code, which imposed a new “legal duty” on anyone who undertakes, or has the authority, to direct how work or a task is performed, to take “reasonable steps” to protect that person and others from bodily harm arising from the work or task.

In Canada, under s. 219 of the Criminal Code, an accused could always be found guilty of criminal negligence causing death by “committing” an act causing the death of another person, or by “omitting” to perform a duty imposed by law which caused the death of that person. Before the Westray amendments, there were other duties in the Criminal Code compelling certain people, like parents, for example, who are bound to provide the necessities of life for their children. The Westray amendments added to this list of statutory duties, by imposing a new duty in criminal law, a first in the world, whereby those in the management chain were legally bound to take reasonable steps to protect workers and others from bodily harm arising from the work in question.

In convicting King, the trial judge examined what “legal duty” King had failed to perform as a supervisor. The trial judge considered the legal duty in s. 217.1 but did not rely on it to convict King. Instead, the trial judge looked towards the duties of a supervisor imposed on him by the New Brunswick Occupational Health and Safety Act and regulations. The trial judge relied on these regulatory provisions as the source of the “legal duty” King was obligated to perform.

The trial judge noted that King was obligated to perform certain general and specific duties imposed on him as a supervisor under provincial workplace safety legislation. These duties included ensuring the health and safety of workers, and a myriad of other specific duties relating to entering confined spaces.

In Canada, most jurisdictions have adopted a broad definition of “employer”. However, in New Brunswick, the definition of “employer” includes “supervisors”. Accordingly, in New Brunswick, by definition, supervisors have the same duties as employers. Arguably, this definition imposes a much higher standard of care on supervisors working in New Brunswick than in most other jurisdictions in Canada where the duties on employers and supervisors differ. Generally speaking, supervisors are treated differently than employers in Canadian regulatory law.

The significance of the approach taken by the trial judge is that a failure to perform a regulatory duty under OHS legislation could be used to establish one of the essential elements of criminal negligence causing death under s. 219 of the Criminal Code. That is, in simple terms, the source of the “duty imposed by law” can come from the OHS regulations.

One of the other main requirements to establish criminal negligence is whether the conduct of the person was a “marked and substantial” departure from the conduct of someone in similar circumstances. Accordingly, the test in criminal negligence for what constitutes a “marked and substantial” departure could be satisfied if the supervisor breaches a workplace safety regulation or fails to become “familiar” with those regulations. This is a serious issue which blurs the line between criminal and regulatory enforcement. A conviction for breaching OHS regulations also pales in comparison to a conviction for criminal negligence. The former rarely results in any imprisonment, while the latter carries a maximum penalty of imprisonment for life.

The approach taken by the trial judge, while not new, raises important public policy questions about equality and consistency in the application of criminal law in Canada for enforcing workplace safety. Should the criminal standard of care imposed on supervisors vary from jurisdiction to jurisdiction?

3. The Importance of Legal Advice After Workplace Incidents

The case also illustrates the critical importance of management obtaining informed legal advice immediately after a serious workplace incident. King cooperated, much to his own detriment, with OHS Officers by giving them a statement shortly after the incident. At his criminal trial, the Crown applied to enter his statement to OHS Officers as evidence against him. The trial judge ruled his statement to OHS Officers was given voluntarily and entered the statement as evidence against him. King testified at his trial and the Crown used his prior statement to OHS Officers in cross-examination, effectively pointing to inconsistencies and contradictions in an attempt to undermine his version of events. In simple terms, King’s own words to OHS Officers helped convict him of criminal negligence causing death. He may not have been convicted if he had exercised his right to remain silent and refused to incriminate himself by speaking with OHS Officers.

This case serves as a good example of the critical need for management to obtain legal advice immediately after a serious workplace incident. The decision whether or not to speak with OHS Officers can be a complex question and necessitates a decision based on fully informed legal advice. For example, in some jurisdictions, like Alberta, it is an offence punishable by imprisonment to refuse to answer the relevant questions of an OHS Officer relating to the cause of a serious workplace incident. This somewhat draconian obligation is tempered by an evidentiary rule making the witness statement inadmissible for any purpose at trial except to prove the witness knowingly gave false information or refused to answer the questions of the OHS Officer. There is some debate whether this (provincial) evidentiary rule applies to a criminal case (which is federal) and whether the rule of inadmissibility extends to derivative evidence collected from the statement. These kinds of complexities and the experience of Jason King demonstrate the critical importance of getting informed legal advice before speaking or refusing to speak with OHS Officers after a serious workplace incident.

Implications for High-Risk Industries

The significance of the King case should not be underestimated, especially for employers and supervisors in high-risk industries. If the approach adopted by the trial judge becomes widespread and accepted by other courts, the implications for workplace safety and criminal liability could be profound and we could be witnessing a shift in the enforcement of criminal liability for workplace safety. In summary, the main take-aways from R v King are:

• Heightened Responsibilities for Supervisors and Employers: with the establishment of a clear standard of conduct for supervisors, there is a heightened duty on them to be proactive in understanding and complying with OHS legislation, safety plans, and manufacturer’s instructions. This means supervisors must take a more hands-on approach to ensure they understand their workplace safety duties. This heightened responsibility extends to employers, in that failing to provide this type of training could be used as evidence in a criminal prosecution against the employer. Springhill has yet to go to trial.
• Consistency of Legal Obligations Across Jurisdictions: the varying regulatory duties imposed on supervisors across Canada might lead to discrepancies in the criminal enforcement of workplace safety for those supervisors. This lack of uniformity could create confusion and challenges for supervisors and employers operating in multiple provinces.
• Legal Counsel and Post-Incident Statements: the case underscores the importance of seeking legal advice after a serious workplace incident, especially when providing statements to OHS Officers or other regulatory investigators. Proper legal guidance can help protect supervisors and employers. Know your rights and exercise them.

Conclusion

The recent criminal conviction of Jason King and the tragic death of Michael Henderson may have significant legal implications for supervisors and employers in Canada, especially those in high-risk industries. While the case speaks to the minimum conduct expected of supervisors, it applies equally, if not more so, to employers. Employers will be required to ensure supervisors are competent, at a minimum, in these three areas through additional training and verification of comprehension. It is equally clear that supervisors will not be entitled to shirk their duties or excuse their conduct because they were not trained. In many ways, the case underscores what we have known for many years in safety – it’s a shared responsibility. Stay tuned for Part 2 of this series where we examine a recent development in Newfoundland with criminal law implications.