Be Diligent and Proactive

The Criminal Code includes charities and not-for-profit groups in its definition of "organization." That means they have "legal personality" and can  be held criminally liable and negligent when it comes to staff safety.

At one time, of course, they were exempt. But all that changed because of a 1992 mining explosion in Nova Scotia when 26 miners died. 

Finding Liability

Under the Criminal Code, the acts of two or more representatives of an organization can be combined to constitute an offence.    The Department of Justice offers this example, which has implications for everyone.    A single employee who turns off three separate safety systems would probably be prosecuted for causing death by criminal negligence if there were a fatal accident that the safety systems could have prevented.    The company might be convicted if the safety director hadn't provided basic training to the negligent employee.    If three employees each turned off a single safety system thinking the other two systems were working, they would probably not be prosecuted because they didn't show reckless disregard.    Their employer, however, might be charged because the company, through its three employees, turned off the systems.    Here, the court would have to decide whether lacking a system to prevent independent action was a marked departure from an expected standard of care. The court would compare the company's practices to those of similar organizations.

As it happened, miners, mine managers and government regulators all knew about the poor conditions at the mine. So Occupational Health and Safety charges were brought but then withdrawn. Criminal charges were brought, but the courts stayed them. The Supreme Court of Canada ordered a new trial, but that never took place.

After a public inquiry, the Criminal Code was changed so that:

1. An organization can be held responsible for any acts or omissions committed by one of its officers, directors, partners, employees, members, agents or contractors.
2. Individuals who direct others in their work are legally bound to take all reasonable steps to prevent bodily harm at work.

Bottom line, your organization needs to become proactive when approaching safety issues and to take measures that can help minimize the chances of being held criminally negligent and add to any defense should a suit be brought. Talk to your lawyers and:

• Review existing policies to ensure they meet legal requirements,
• Develop any policies and procedures that are lacking;
• Ensure all officers, employees and volunteers know the policy and its requirements;
• Require all officers to report instances when the policy has failed, and
• Record in writing all steps taken to ensure that the policy remains effective.

The penalties can be severe. An organization convicted under the Criminal Code can be fined as much as $100,000. For more serious, indictable offences, there is no limit on the amount of the fine. The courts also can order restitution to the injured parties.

When it comes to sentencing, individuals face ten years in prison or, if the accident was fatal, up to life in prison.

In addition to monetary penalties, the Code allows such probationary penalties as requiring an organization to:

• Inform the public of the offence, the sentence, and remedial measures. This could seriously affect your group's reputation and success;
• Set up new safety policies and procedure, name a senior officer to oversee them, communicate them to all staff, and
• Report on progress.

Don't Underestimate: The bill is broad and increases the accountability of all organizations for employee safety. Make sure your lawyers approve all your polices and that your entire organization understands the seriousness of criminal liability.