Is Corporate Criminal Liability Possible Despite a Defence to OHS Charges?
By Jeremy Warning
Your organization considers workplace health and safety important. Steps are taken to ensure that work is performed in compliance with health and safety laws, industry standards and best practices. In that regard, the organization conducts workplace hazard assessments, implements measures and procedures to address the hazards identified in the assessments, provides workers and supervisors with relevant health and safety training, and requires all workplace parties to discharge their health and safety obligations. Taking such steps are essential elements of exercising all reasonable care to avoid workplace accidents and injuries. If carried out, one might think that the organization should have little concern about criminal liability in the event of a workplace accident. However, the recent guilty plea by Metron Construction Corporation (which was charged with criminal negligence following a quadruple fatality on Christmas Eve 2009) suggests that, in certain circumstances, such positive steps could be displaced and the organization found guilty of criminal negligence.
The March 2004 amendments to the Criminal Code, which resulted from the 1992 Westray Mine explosion, were designed to make it easier to prosecute organizations for criminal negligence. The means and method of proving criminal negligence was broadened such that the actions of a broader group of people could be used to prove an offence. The revised method of proof requires that: (1) a representative of the organization act, either alone or through the cumulative conduct of multiple representatives, with wanton and reckless disregard for the lives or safety of any person; and (2) that a senior officer markedly depart from the reasonable standard of care expected to prevent the harm caused by the representative(s). As such, criminal negligence against a corporation is to be proven through a two-step test.
However, Metron was convicted of criminal negligence solely on the actions of a site supervisor. This effectively collapsed the two-step test into a single step because the site supervisor was treated as both the representative and senior officer. In so doing, the actions of the site supervisor displaced a number of positive steps taken by Metron and its upper management before the accident. Further, the agreed facts suggest that the criminally negligence behaviour of the site supervisor may have been rogue actions that largely occurred over a very brief period of time.
Although Metron was a guilty plea and the conviction based on agreed facts – which may not represent the totality of the evidence being considered by Metron – the conviction, which was tacitly endorsed by the court, should give employers and other organizations pause. That is because, in contrast to proceedings under health and safety legislation, there is no due diligence defence to criminal negligence. Consequently, Metron suggests that, should a person be injured or killed by the criminally negligent behaviour of a senior officer of the organization (who will also be a representative), the organization could be convicted regardless of the extent of any positive steps taken. This means an organization may have near absolute liability in such circumstances and could convicted of criminal negligence notwithstanding evidence of due diligence sufficient to acquit it of a regulatory charge. It is the view of the authors of our recent OHS & Workers’ Compensation Management Update that, in order to give effect to the provisions of the Criminal Code and the legislative intent behind the 2004 amendments, the two-step test must be applied, the Metron case presents a troubling potential for organizations with individuals who exercise a high degree of local authority.
Future cases may be required for clarification but Metron does present a chilling prospect. For more detailed comment, please follow the link to our Update.