Canadian Occupational Safety

October 2014 15 T he corruption of government offi cials is as old as health, safety and environmental (HSE) laws themselves. HSE government inspec- tors, offi cials and regulators may affect the starting, operation and disrup- tion of business more than any other governmental authority. They may expedite business operation or they may circumvent HSE laws in exchange for bribes and other benefi ts. This raises serious challenges for corpora- tions in Canada and internationally. A number of developed countries, including Canada, the United States and the United Kingdom, have passed legislation to prohibit corrupt activity domestically and abroad. Canada was one of the early adopters of the OEDC Anti-Bribery Convention, which passed the Cor- ruption of Foreign Public Offi cials Act (CFPOA) in 1998 and ratifi ed the Convention on Dec. 17, 1999. How- ever, this was more than 20 years after the passing of the Foreign Corrupt Practices Act (FCPA) in the U.S. Sig- nifi cantly shorter and narrower than its U.S. counterpart, the Canadian leg- islation does not purport to apply to foreign companies or foreign nation- als. In order to be prosecuted under the CFPOA, the actions of the offender must have a "real and substantial" link to Canada. Similar to the FCPA, and as encour- aged by the Convention, the CFPOA contains defences if: • the payment is made to expedite or secure the performance of an act of a routine nature that is part of the foreign public offi cial's duties or functions • the benefi t is permitted or required under the written laws and regula- tions of the foreign country with whom the foreign offi cial is affi liated • the benefi t was to compensate for reasonable expenses incurred in good faith by the foreign public offi cial. The increased attention that inter- national business anti-corruption law has received, at both a political and a law enforcement level, has resulted in increased resources being given to the RCMP in Canada. There are currently more than 35 active investigations under the CFPOA. The RCMP and fed- eral prosecutors have been encouraged by two recent guilty pleas entered by Niko Resources and Griffi ths Energy. In both cases, the corporations were subject to a total of penalties and fi nes in the range of $10 million. In the case of Niko Resources, the bribes were a reaction to a health, safety and environmental disaster when a gas well exploded in Bangladesh. The bribes were confi rmed in court to be a high-end SUV, valued at $250,000 to a Bangladeshi public offi cial and a complimentary trip to New York City for a Bangladeshi government offi cial and family member. To minimize the likelihood of corrupt practices among health and safety professionals, licensing bodies have implemented strenuous ethical obligations upon their membership. For example, the Code of Ethics of the Board of Canadian Registered Safety Professionals requires its members to "provide sound judgment in pursuance of their professional duties; maintain the highest standards of integrity and professional competence; and uphold the honour and prestige of the profes- sion." It also states they must "avoid circumstances where compromise of professional conduct or confl ict of interest may arise." Failure to comply with these obli- gations may result in disciplinary measures, including the revocation of the Canadian Registered Safety Profes- sional (CRSP) designation. Hse RegulAToRy coRRupTion One of the earliest examples of HSE corruption involves the investigation by the U.S. Federal Bureau of Investi- gation into a complex bribery scheme involving the federal Occupational Safety and Health Administration's (OSHA) regional offi ces in Phila- delphia in 1986. This case involved allegations of an OSHA director accepting cash payments from union offi cials to dispatch OSHA inspectors to non-union construction sites to look for violations of federal health and safety rules. In another case in 1995, a factory manager was charged after attempting to bribe offi cers of the federal Occupa- tional Safety and Health Department to encourage them not to take any action against the factory for using machinery without valid certifi cation. And in 2005 a former assistant director of the same department was charged with accepting a bribe from a factory manager in exchange for rendering a favourable report following a repeat inspection of the factory. In Canada a 2008 exposé by the Toronto Star entitled "Hiding injuries rewards companies: Star investigation reveals job safety numbers are under- reported, cutting employer costs" said the workers' compensation regime in Ontario provided an incentive to com- panies who pressure or bribe workers not to report major injuries at all. In fact, the newspaper suggested it had been able to identify 3,000 serious injuries in a four-year period from 2004-08 where affected workers did not get a single day off work. In light of the recent emphasis on international anti-corruption laws, health, safety and environment pro- fessionals should take note of the legislative requirements associated with each of these initiatives. They should evaluate the potential impact these obligations may have on their employers' global operations and implement measures to mitigate risk of liability. By proactively identifying situations that have the potential to lead to corruption or bribery, HSE pro- fessionals can assist their employers in mitigating risk and avoiding signifi cant legal liability. Furthermore, HSE pro- fessionals can help their employers to ensure that situations of corruption or bribery are identifi ed and addressed by designing and implementing report- ing protocol to encourage employees to inform the organization of prohib- ited or questionable conduct and take action to address it. 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 can be reached at (416) 868-7824 or nkeith@fasken.com. oHs offi cials not immune to corruption Professionals encouraged to proactively identify situations that could lead to bribery NORM KEITH LEGAL LANDSCAPE NORM KEITH LANDSCAPE Carmen Mager is a health and safety professional at the Toronto Transit Commission specializing in transit safety. Carmen is responsible for developing and facilitating health and safety training, serves as the Management Co-Chair on her local Joint Health and Safety Committee and has led serious incident investigation teams. Carmen holds a BA degree in Canadian Studies from York University, a Masters Certificate in Adult Training and Development from Schulich School of Business and certificates in Occupational Health and Safety, Business Administration and Public Relations from Ryerson University. A CRSP since 2003, she is serving as Chair of the Item Writing Committee and recently worked on the Compe- tency Review Project. Carmen enjoys the opportunity to advance the health and safety profession along with other dedicated and knowledgeable CRSPs. As Carmen believes that the learning never stops, she is continuing her studies in the field of health and safety, as well as volunteering her time in other areas. She finds volunteering to be very rewarding and encourages everyone to get involved. The Board's Volunteer of the Year program was initiated in 2001 in conjunction with its 25th anniversary and the United Nation's "Year of the Volunteer". The Board of Canadian Registered Safety Professionals (BCRSP) is a public interest, ISO 17024 (Personnel Certification Body) and ISO 9001 (Quality Management System) accredited, self-regulating, self-governing organization established in 1976 under The Canada Corporations Act for the purpose of certifying Canadian Registered Safety Professionals (CRSP) ® / Professionnel en sécurité agréé du Canada (PSAC) ® . Board of Canadian Registered Safety Professionals/Conseil canadien des professionnels en sécurité agréés 6700 Century Avenue, Suite 100, Mississauga, ON L5N 6A4, info@bcrsp.ca, www.bcrsp.ca Board of Canadian Registered Safety Professionals 2014 Volunteer of the Year Announcement Carmen Mager is a health and safety professional at the Toronto Transit Commission specializing in transit safety. Carmen is responsible for developing and facilitating health and safety training, serves as the Management Co-Chair on her local Joint Health and Safety Committee and has led serious incident investigation teams. Carmen holds a BA degree in Canadian Studies from York University, a Masters Certificate in Adult Training and Development from Schulich School of Business and certificates in Occupational Health and Safety, Business Administration and Public Relations from Ryerson University. Board of Canadian Registered Safety Professionals

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