Recent Development in Labour Relations

Bill C-45 amended the Criminal Code to permit corporations to be more readily charged and convicted of criminal negligence causing either death or bodily harm. Before the Bill's enactment in March 2004, corporations could be convicted of crimes only where the criminal acts or omissions were those of a "directing mind" or "alter ego" of the corporation. Jurisprudence limited "directing minds" to very senior employees such as officers or directors with corporate decision-making authority over matters of policy.

Under Bill C-45, however, the conduct of "senior officers" and "representatives" can result in criminal liability for the corporation itself. "Senior officers" includes not only directors, chief executive officers and chief financial officers, but anyone who sets policy or manages an important part of an organization.

"Representatives" is even broader, embracing employees as far down the hierarchical line as lead hands, and even non-employees such as agents and contractors. Bill C-45 also imposes a duty on anyone who "directs work" to take "reasonable steps" to prevent bodily harm to workers and to the public.

The combined effect of these definitions makes a corporation subject to charges of criminal negligence when a "senior officer" departs markedly from the standard of care required to ensure that "representatives" do not breach this new legal duty.

The enactment of Bill C-45 prompted fears of multiple and parallel charges under the Criminal Code and provincial occupational health and safety legislation. The fears hadn't materialized, despite the fact that over 800 workplace deaths occur annually in Canada.

However, on Christmas Eve in 2009, four migrant workers fell 13 stories to their deaths when a scaffolding broke apart on a Toronto site that had been subject to two earlier stop-work orders based on safety concerns.

Although the Ministry of Labour laid 61 charges under the Occupational Health & Safety Act in the Toronto deaths, Sid Ryan, President of the Ontario Federation of Labour, called for a criminal investigation into the incident. In October 2010, Toronto police responded by laying criminal negligence charges, which carry maximum terms of life imprisonment.

As it turns out, the first Ontario charges against a corporation under Bill C-45 had been laid some eight months earlier, followed a 10-month police investigation that culminated in February 2010, when Sault Ste. Marie police charged Millennium Crane with criminal negligence causing death. The Ministry of Labour also laid five charges under the Occupational Health and Safety Act. In April 2011, however, the Crown withdrew the criminal charges.

Bill C-45 got its first trial on the merits after Québec authorities charged Pasquale Scrocca, a landscape contractor, with criminal negligence causing death after an employee died in a workplace incident when a backhoe driven by Scrocca failed to brake and pinned him against a wall.

Scrocca argued that he lacked the necessary intent to satisfy conviction on a charge of criminal negligence as he was not aware of the braking deficiencies that allegedly caused the accident.

The court ruled that a positive intention was not required in criminal negligence cases. Here there had been a clear breach of the duty imposed by the Code to take reasonable steps to prevent bodily harm to a worker. Scrocca was unaware of the risks because he had put himself in a position where he could not be sure of the machine's fitness, inducing a state of mind that recklessly put his workers in danger.

Following a joint submission from the Crown and the defense, the court sentenced Scrocca to a conditional sentence of two years less a day, which allowed him to serve his time in the community with various conditions, including a curfew.