The Westray Bill (Bill C-45) For Employers
The Westray bill (or “Bill C-45 (2003)” before it became law back in 2004) has particular relevance to those with personnel working in high risk environments like swiftwater, surface ice, confined space or with technical rope systems.
What was the Westray bill (Bill C-45)?
On March 31, 2004, the Westray bill became became law when it was added to Section 217.1 to the Canadian Criminal Code.
Because of the Westray bill becoming law, Canadian employers and individuals in both the public and private sector can be charged with criminal negligence for failing to ensure their personnel have the information, training or equipment required to do their jobs in a safe manner.
Note: The Canadian federal government reuses bill numbers. Currently Bill C-45 is being used to announce Act(s) respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts.
Section 217.1 of the Criminal Code reads:
“217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”
The legislation established new legal duties for workplace health and safety, and imposed serious penalties for violations that result in injuries or death.
It also established rules for attributing criminal liability to organizations, including corporations, for the acts of their representatives and also created a legal duty for all persons directing work to take “reasonable steps” to ensure the safety of workers and the public.
Learn more about supervisor legal duty, negligence, and standard-of-care.
Why was Bill C-45 (Section 217.1 in the Criminal Code) created?
Bill C-45 was created as a result of a 1992 coal mining disaster in Nova Scotia when 26 underground miners at the Westray Mine were killed after methane gas ignited and caused an explosion.
As a result, many still refer to it as the “Westray Bill”.
The mine had only been operating for eight months when the explosion occurred. In that time, employees had raised a number of safety concerns that were being echoed by union officials and government inspectors. However, the parent company, Curragh Resources, failed to institute any meaningful changes and eventually, the explosion occurred killing everyone underground at the time.
After the accident the police and provincial government failed to secure a conviction against the company or three of its managers.
A Royal Commission of Inquiry was established to investigate the disaster. In 1998, the Royal Commission made 74 recommendations. The Commission’s findings (in particular recommendation 73) were the impetus that led to Bill C-45, and eventually the addition to the Criminal Code.
What are the main provisions of Section 217.1 in the Criminal Code?
Section 217.1 in the Criminal Code:
- Created rules for establishing criminal liability to organizations for the acts of their representatives.
- Establishes a legal duty for all persons “directing the work of others” to take reasonable steps to ensure the safety of workers and the public.
- Sets out the factors that courts must consider when sentencing an organization.
- Provides optional conditions of probation that a court may impose on an organization.
Who does this Criminal Code affect?
This Criminal Code affects all organizations and individuals who direct the work of others, anywhere in Canada.
These organizations include federal, provincial and municipal governments, corporations, private companies, charities and non-governmental organizations. It can include managers, supervisors, and owners – ie. anyone who is responsible for overseeing the actions of others.
Who is responsible for enforcing this Criminal Code?
Police and the Crown (provincial and federal) are responsible for investigating serious accidents and determining whether any charges should be laid under the Canadian Criminal Code.
The Criminal Code is a very different set of rules, and should not be confused with “regular” occupational health and safety laws (OH&S) and how they are enforced in each province.
Who is responsible for enforcing occupational health and safety laws?
Depending on your jurisdiction, the Ministry (or Department) of Labour or Workers’ Compensation Board (WCB) enforces OH&S laws.
Across Canada each province, territory and the federal government are responsible for enforcing their own individual set of occupational health and safety laws. Each jurisdiction employs inspectors who visit workplaces to ensure companies are complying with their OH&S rules.
In the unfortunate event of a serious accident, these inspectors conduct an investigation and determine if a charge should be laid under the appropriate section(s) of the OH&S act or regulation. An accused individual or company may be required to appear in court where a fine or other penalty could be imposed if they are convicted.
The police are not normally involved in this process.
Does Section 217.1 in the Criminal Code impact on other legislation?
No. Section 217.1 is a separate piece of legislation that applies to the Canadian Criminal Code only. It does not impact upon, or override, other existing federal, provincial or territorial occupational health and safety statutes and regulations.
In the event of a conviction, however, Section 217.1 does require the courts to look at any penalties imposed by other jurisdictions in determining a sentence.
Can a company be charged under a provincial OH&S act and the Criminal Code at the same time?
Yes, it is possible to face charges under both sets of laws.
It is common practice for both police and health and safety inspectors to investigate a serious workplace accident, and so while it is unlikely that two sets of charges would be made, technically speaking, charges can be laid under both the Criminal Code (by the police or Crown Attorney) and the Occupational Health & Safety Act (by provincial WCB authorities).
In most cases, however, the police and provincial authorities would work together to decide which charges should be made and under which legislation.
This situation has occurred in the Millennium Crane Rentals case from Sault Ste Marie, ON.
What types of offences are being targeted?
There is a wide range of offences that have resulted in charges under Section 217.1. These include a crane toppling into an excavation, killing a worker; the death of four workers who fell from a swing stage on the 14th floor; an auto repair worker who was severely burned when a fuel pump caught fire; and the death of two personnel working downstream from a hydroelectric dam that opened unexpectedly.
At the time the law was being discussed in parliament, the government commented on its intentions for the Westray bill (Bill C-45) stating that:
“The criminal law must be reserved for the most serious offences, those that involve grave moral faults… the Government does not intend to use the federal criminal law power to supplant or interfere with the provincial regulatory role in workplace health and safety.”
These comments may serve to help guide authorities in their application of the law, but they do not in of themselves constitute the law.
Has anyone been charged?
Yes.
There have been several cases where charges have gone to court. The other cases were either withdrawn or did not result in a guilty verdict.
Some examples:
- On February 11, 2010 Sault Ste Marie Police charged the owner of Millennium Crane Rentals and the crane operator with criminal negligence causing death after a municipal worker was killed while working in an excavation hole. The accident occured on April 16, 2009 at an excavation site where sewage work was being performed. The crane toppled and fell into the hole, killing the worker.
- On March 17, 2008 a paving company (Transpavé) was convicted of criminal negligence and fined $100,000 in the death of an employee. The conviction was based on the new provisions of Bill C-45 in the Criminal Code of Canada.
- On May 17, 2007, Mark Hritchuk, a Service Manager at a LaSalle, Quebec auto dealership was charged with criminal negligence after one of his employees caught on fire while using a makeshift fuel pump that had gone unrepaired and broken for several years. Mr. Daoust, a 22 year employee with the company, was engulfed in flames after a spark ignited fuel which had spilled on him, while he attempted to fill the gas tank of a vehicle whose fuel gage had broken and needed repairing. The employee survived but received third degree burns to 35% of his body. The case was brought before a court of inquiry on March 10, 2009. No further details about the outcome of the inquiry have been reported.
- On April 19, 2004 near the city of Newmarket, Ontario a worker was killed after the ground around him collapsed while digging a ditch at a residential construction site. The construction site supervisor was charge under section 217.1 of the Criminal Code with one count of criminal negligence causing death. In March 2005 the charges of criminal negligence against the site supervisor were dropped in an apparent plea bargain which saw the supervisor agree to three of eight charges under the Ontario Occupational Health and Safety Act.
- In June 2002 near Calabogie, Ontario, two people were killed when a gate to a hydroelectric dam was opened, causing a flood. Two supervisors were acquitted of criminal negligence causing death in 2006.
How can I ensure a safe workplace and limit my liability?
Employers can limit their liability and reduce the chances of being charged under the provisions of the Criminal Code by implementing an effective workplace health and safety program.
You will need to know:
- What your legal obligations are under occupational health and safety laws and standards,
- What hazards exist in your workplace,
- How to effectively reduce or eliminate them
- How to keep track of safety initiatives, incidents etc.
- How to ensure employees are aware of the company’s health and safety program, are informed of any risks, and receive appropriate training and protective equipment.
Below are some OSH Answer documents available online. You may also want to consider hiring a health and safety consultant to assist you with developing an effective OH&S program.
For further information, review other OSH Answers documents.
Plain Language Guide to Bill C-45
Information sourced from the Canadian Centre for Occupational Health & Safety.
