Workplace safety has taken on a whole new legal risk with the Westray Bill, now in place for 15 years. This was brought into sharp focus with the criminal prosecution of a manager and his employer following an explosion of fire that caused the death of one worker and seriously injured five others in Sarnia, Ontario. The employer and the supervisor were charged with failing to ensure a safe workplace, resulting in the incident.
The employer was a Canadian operation of a multi-international corporation carrying on business in Sarnia, Ontario. The supervisor was the Regional Manager of the operations in Sarnia. The employer's employees were working on an overtime shift. The workers were engaged in a Thermal Spray Aluminum ("TSA") process at the Sarnia plant. After the afternoon lunch break, a fire occurred outside of the dust collection unit, causing aluminum dust inside the dust collector to ignite. An explosion ensued. The first explosion propagated quickly through the dust collector and into the building, where workers were actively engaged in the TSA process. This resulted in a further ignition of aluminum within the building and created a second, larger explosion. The tragic loss of life and serious injuries were the result, together with tremendous property damage.
A forensic engineer testified for the prosecution at trial regarding the sequence of events:
- "Combustible dust in suspension in the air;
- The dust had to be above the minimum explosive concentration;
- An ignition source;
- A partial confinement so the pressure builds leading to an explosion as distinguished from a flash fire."[i]
The Crown contended that the two defendants created an inherently dangerous environment for their employees and breached their legal duty under section 217.1 of the Criminal Code. Section 217.1 was added to the Criminal Code in the Westray Bill, and reads as follows, "Everyone who has the authority to direct how another person does work or performs a task is under a duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task."
The defence argued that the evidence before the Court fell short of proving the actus reus or mens rea of criminal negligence causing death. The defence argued that at least some reasonable steps had been taken by the supervisor and the employer to protect workers at the plant.
The Trial Court carefully compared the Westray Bill amendments with the regulatory offence under the Occupational Health and Safety Act. ("OHSA"). Sections 25(2)(h) and 27(2)(c) of the Occupational Health and Safety Act requires an employer and supervisor to take every reasonable precaution for the health and safety of workers. In contrast, s. 217.1 of the Criminal Code says they must take "reasonable steps to prevent bodily harm". In other words, the Trial Court indicated that the duty under the Criminal Code is a lower standard of care and therefore harder to prove.
In addition, the criminal prosecution must establish, beyond a reasonable doubt, that the conduct of the individual and corporate accused was a marked and substantial departure from what a reasonable person would expect to be sufficient in the circumstances. This is the test for establishing that the accused demonstrated "wanted and reckless disregard" for the lives and safety of their workers.
This comparison between a regulatory statutory offence and criminal negligence offence is critical. First, there is a different standard of care on an employer or manager under the Criminal Code than under regulatory law. This reflects the higher level of proof needed to establish legal culpability in criminal law compared to the regulatory statute. Second, there is a need to prove criminal intent, or mens rea, in the criminal offence. This means that the Crown prosecutor has to prove both the prohibited act or actus reus, and the criminal intent, or mens rea, beyond a reasonable doubt. In contrast, occupational health and safety regulatory offences do not have any element of mens rea.
In this case, the Court commented that "the Ministry (of Labour) took the view that the employer was in compliance with and cooperating with their direction relative to the work order, the intent of s.7 and the PSR related issues up to the date of the explosion. Very specifically, a stop work order was never issued in relation to the TSA process for the dust collector."
The Court went on to conclude, "This is a criminal proceeding. This is not a civil case where the standard of proof is on the balance of probabilities. Nor is the case before me a regulatory offence dealing with a duty to take all reasonable steps to protect the health and safety of workers."
In the result, the Court held that the Crown did not prove beyond a reasonable doubt that the actions of the individual or corporate defendant constituted a marked and substantial departure from the applicable standard of care.
However tragic the incident was, it did not result in a criminal conviction. Loss of life of any worker is always tragic. But, as the Court said in their third last paragraph, "However, it is my clear duty to follow and assess the evidence and apply the applicable law and standard of proof in a criminal case. I may not be influenced by emotions, despite the fact that I have them."
Finally, criminal law, in the Westray Bill is important in safety law. An individual, if convicted with criminal negligence causing death, may be imprisoned for life. A corporate defendant, if convicted, may face a fine of an unlimited amount, since such an offence is indictable under the Criminal Code. Therefore, a criminal conviction should only follow clear and convincing evidence, beyond a reasonable doubt, that both the actus reus and the mens rea of the offence has been proven at a criminal standard.
[i] R. v. Lavoratore and Veolia, ES Canada Industrial Service Inc., unreported decision of Austin J., 2018, p. 4