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Not enough charges are brought to protect workers, says lawyer

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by IAN HARVEY

The Crown’s push for a 15-year jail term for the project manager of a swing stage that collapsed and killed four men and seriously injured a fifth is a positive result of the so-called Westray Mine Bill passed more than a decade ago, says a Toronto lawyer.
On Christmas Eve 2009 four workers were killed when this swing stage came apart, plunging them 13 storeys to the ground below. Three other men on the swing stage at that time survived, one of them being Vadim Kazenelson, who was the project manager. Kazenelson was found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm in relation to the incident. Kazenelson awaits word on his sentence which is expected to be delivered in January 2016.
On Christmas Eve 2009 four workers were killed when this swing stage came apart, plunging them 13 storeys to the ground below. Three other men on the swing stage at that time survived, one of them being Vadim Kazenelson, who was the project manager. Kazenelson was found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm in relation to the incident. Kazenelson awaits word on his sentence which is expected to be delivered in January 2016. - Photo: VINCE VERSACE

However, it is still a woefully under used piece of legislation.

"Canada is soft on white collar crime and police and the Crown aren't aggressive enough," said construction lawyer Norm Keith, a partner at Fasken Martineau.

He says much more could be done to vigorously prosecute companies, owners and managers.

Indeed, it seems a lifetime ago that 26 miners died at Westray Mine in Nova Scotia as a result of shoddy management acting with a total disregard for their health and safety. However, many experts state their deaths have not been forgotten. The 1993 accident led to, what many locals referred to as, a farcical and tragic mistrial and none of the mine managers were ever called to account as the charges were dropped. However, it did spur the federal government to enact Bill C-45 in 2004 which toughened up the Criminal Code in relation to workplace safety and created a specific personal liability for owners and manager to ensure all safety programs and procedures are followed.

Since then C-45, a.k.a "the Westray Bill," has steadily started to impact how workplace safety is viewed by the police, the law and the courts. However, it's not the only law under which corporations — which are considered persons in the eyes of the law — owners and managers are being held accountable. The Ontario Occupational Health and Safety Act also has tough penalties which are being applied.

Still, Keith, who has written a book on Bill C-45 titled Workplace Health and Safety Crimes (LexisNexis), 3rd Edition (2014), says more could be done.

"There have not been more than 10 prosecutions in the 10 years that Bill C-45 has been passed into law, especially since the number of fatalities has not changed over that decade," he said.

"Stats from the Association of Workers Compensation Boards of Canada show for the last decade, the average number of fatalities has remained constant, at approximately 990 every year for the last 10 years. I don't understand when you have over 9,000 persons killed on the job in a 10-year period why only 10 of them have resulted in a police investigation and criminal charges. That's low. So, why are so few cases prosecuted under Bill C-45?"

The answer, he said, is threefold. There's been little education for both police and Crown attorneys about C-45, which invokes a complex assessment of a company's management structure to successfully charge principals. Second, he said, police are told to leave workplace deaths to the provincial occupational health and safety (OHS) legislation and prosecution to labour ministry officials and third, because "Canada is soft on white collar crime."

The looming sentencing of Vadim Kazenelson, found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm in the deaths of four coworkers and the injury of a fifth in the 2009 swing stage collapse at a Toronto high-rise, is an opportunity to kick start the discussion again, Keith said.

The Ontario Federation of Labour has also been pushing for stiffer penalties. Its outrage in 2012 turned to celebration when the initial fines of $342,000, levied against Metron Construction and owner Joel Swartz, were raised to $750,000 in 2013. The swing stage supplier, Swing N Scaff Inc. of Ottawa, was also fined $350,000 for failing to ensure the platform was in good condition.

Keith said prosecutions have been slim. Charges are laid but often withdrawn as they were in the 2009 case against Millennium Crane Rentals in Sudbury, Ont. In that case the crane operator was charged with criminal negligence causing death when a municipal worker was killed working in an excavation hole. The company was ultimately fined $70,000 in 2013 under the OHS.

However, there have been jail terms: The B.C. Ferries operator charged with two counts of criminal negligence causing death, after two passengers were killed in March 2006, was sentenced to four years in jail in 2013 and lost his appeal in December 2014.

A landscape contractor in Quebec was also sentenced to two years less a day after being found guilty of criminal negligence causing death when a backhoe's braking system failed and pinned a man against a wall. The court heard that the 30-year-old machine had 14 major issues and additionally there were no front brakes, nor brake fluid in the reservoir and more than 70 per cent of braking capacity had failed.

Generally, these prosecutions are too few and far between, Keith says, and it's just not enough.

"The simple truth is that police and Crown attorneys have not been aggressively enforcing this legislation," he said.

"With approximately one case on average per year of the first 10 years, there is a statistical risk of 0.1 per cent that a Bill C-45 prosecution will be initiated when there is a workplace fatality.  If that same statistic was applied to homicide, sexual assault, robbery and commercial fraud, there would undoubtedly be public outcry."

The real question, he said, is whether after the 2009 Christmas Eve fatalities case wraps up, it will serve as notice for all parties to step up their game moving forward and take workplace safety seriously.

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