Canadian Occupational Safety

April 2014

Canadian Occupational Safety (COS) magazine is the premier workplace health and safety publication in Canada. We cover a wide range of topics ranging from office to heavy industry, and from general safety management to specific workplace hazards.

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April 2014 17 Code. The appeal decision may be understood in light of the court's concern to emphasize general deter- rence for other construction companies and employers more so than just for Metron. The greater risk under Bill C-45 is really for individuals rather than organizations. For example, the fi rst prosecution under Bill C-45 in 2004 was against Domenic Fantini of Vista Construc- tion in King Township, Ont. He was charged under OHSA and Bill C-45 after a trench collapsed on employees under his supervision. He plead guilty to a lesser, regulatory offence under OHSA in exchange for a withdrawal of the criminal charges. Another interesting and contro- versial prosecution arising in part from the Bill C-45 amendments to the Criminal Code was the trial and conviction of Karl-Heinz Lilgert. The pilot of the Queen of the North ferry was convicted of criminal negligence causing the death of two passengers, when the ferry struck an island off the coast of British Columbia and sank. The bodies of the two passengers were never recovered. Lilgert was convicted after a trial and given a substantial term in prison, which is currently under appeal. This case emphasizes the importance of Bill C-45 when workers fail to take reasonable steps to protect the public for which they have a responsibility. One thing is very clear from the court decisions to date, and in particular the Court of Appeal's decision in Metron: If employers are convicted of offences of OHS criminal negligence under Bill C-45 amendments, their punishment may be severe. One can only imagine the type of fi ne, in similar circumstances, that a much larger corporate employer may have faced. The other sobering fact is there is no upper limit to fi nes that may be imposed on a corporation when they are prosecuted under a Bill C-45 offence. The $750,000 fi ne and the bankruptcy of Metron may just be the beginning. Bill C-45, 10 years later, has meant greater risk of criminal liability for companies and senior executives who fail to take every reasonable precau- tion to prevent bodily harm at the workplace. However, the simple truth is that police and Crown attorneys have not been aggressively enforc- ing this legislation. With about one case, on average, per year in the fi rst 10 years, there is a statistical risk of 0.1 per cent that a Bill C-45 prosecu- tion will be initiated when there is a workplace fatality. If that same statistic was applied to homicide, sexual assault, rob- bery and commercial fraud, there would undoubtedly be public outcry. However, the failed objectives of Bill C-45 have attracted little attention. Further, since workplace fatalities have remained at the same level for the last 10 years, Bill C-45 has had no meaningful deterrent effect on reducing workplace fatalities. There- fore, it remains to be seen whether the police, Crown attorneys and employers are taking the intention of Bill C-45 seriously. Norm Keith is a partner at Toronto- based law fi rm Fasken Martineau DuMoulin LLP. He specializes in employment, health and safety, environmental, workers' compensation and white-collar crime litigation. He has authored a book on the Bill C-45 amendments to the Criminal Code: Workplace Health and Safety Crimes, 3rd Edition (2014). He can be reached at (416) 868-7824 or nkeith@fasken.com. 54.5% of eye accidents are from chemical burns ... ... you need burn management in a bottle! With the new eyewash from , the unique first aid treatment eyewash that also neutralizes a chemical burn. It's also a quicker rinse with the new 1/4 turn twist 'n pour tab! • New all-risk formula • Instant relief from burn to eye or skin • ¼ twist 'n pour design • Not just a saline solution Contact us for a FREE self-audit or visit our web site: http://www.dentecsafety.com/campaign.htm 888-533-6832 Specializing in safety solutions Training Support Neutraliser ™ A-Med Coop.indd 1 12/10/12 2:19 PM Keep WORKING muscles WORKING ... The Rehydration Drink Of Industry Try it for FREE! Call: 1-888-533-6832 www.dentecsafety.com Specializing in safety solutions Training Support Claudio Dente, President • Electrolytes - magnesium, potassium, sodium and calcium are replaced. • Head stress is reduced. • Replensihes nutrient minerals. • Best tasting rehydration drink for over 25 years. DENTEC - Sqwincher Ad.indd 1 1/6/12 1:48:29 PM

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