September 2004
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The thrust of the federal and provincial legislation is that failure to maintain a safe work environment, including the use of CSA approved safety equipment and proper safety training, results in a breach of a duty owed to the worker. There are risks involved with the use of the fall-protection-system and indeed it seems that if a person working alone becomes unconscious while suspended in a fall-protection-system, death could result.

If a union is charged under the new provisions of the Criminal Code, it does not necessarily mean that the union or individual union member will be found guilty of criminal negligence. The Crown must prove beyond a reasonable doubt that the breach represented "a marked and significant departure from the standard of a reasonable prudent person in the circumstances." To prove such a breach, evidence will need to show the union acted with a complete disregard for or indifference to the duty. In other words, these recent amendments to the Criminal Code make it critical for union business managers and executives to adequately supervise their action to those for whom they are responsible.

Based on some existing collective agreement framework and Letters of Understanding, the law firm of Martin, Whalen, Hennebury, Stamp conclude that the union could face a criminal charge if a serious accident were to occur. To avoid liability under the existing framework, your local should take steps to ensure that all union officers, employees and union members are aware of the new provisions set out in the Criminal Code, any legislative provisions which govern the use of fall protection safety equipment, and the risks associated with such equipment. In addition, all persons must be made aware of the implications for the Union and individual members of these provisions when responding to trouble calls and using the fall-protection-system in high risk situations when working alone.

Police Lay Charges Under "Westray Bill" Following Worker’s Death

An Ontario man, a project supervisor at a construction site, has been charged with criminal negligence under the so-called "Westray amendments" to the Criminal Code as a result of a worker's death. The incident occurred when, in the supervisor's absence, the worker jumped into a trench being cleared with a mini-excavator. The trench collapsed, burying the worker between a five-foot wall of dirt and the foundation of an adjacent building.

The charges allege that the supervisor violated s.217.1 of the Criminal Code, which provides as follows: "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." This provision came into effect last March, in conjunction with other amendments to the Code (Bill C-45).

The bill, which was introduced following a parliamentary report on the Westray mining disaster, also imposes liability on companies for criminal acts by their officers, and enacts new requirements to protect employees' health and safety. (In 1992, 26 miners were killed at the Westray mine in Nova Scotia after the mine's owners and managers repeatedly ignored safety warnings.)

The charges are reportedly the first to be laid under Bill C-45. The maximum sentence for a conviction of criminal negligence causing death is life imprisonment.

Saskatchewan Labour to Issue Hazard Alert Regarding Metal Halide Lamps, After Several Employees Suffer "Sunburns"

McNaughton High School, located in Moosomin, Saskatchewan, played host to a back-to-school meeting for local teachers on August 31, 2004. Teachers gathered in the school’s gymnasium for the meeting. However, later that evening, 22 teachers sought medical attention for burns, rashes and swelling. Six of the teachers were hospitalized for further observation. Classes, scheduled to begin the next day, were immediately cancelled pending a health and safety investigation.