Is Bill C-45 a paper tiger?

But some labour lawyers aren’t so sure. They think the sentence imposed in the case, a $100,000 fine, calls into question the pertinence of amending the Criminal Code to hold employers criminally liable for negligent actions — or inactions — that result in injuries and/or death to their employees in the workplace. “The purpose of C-45 was to put people in jail,” said Marie-France Veilleux, a veteran labour lawyer with the Teamsters Canada union in Montreal, to which the deceased worker at the heart of the precedent-setting case belonged. “What’s the point of [C-45] if employers can plead guilty or plea bargain and pay a fine and avoid going to jail?”

The case, which has been the subject of much conversation in labour circles across Canada, involved Quebec paving stone manufacturer Transpavé Inc. It began Oct. 11, 2005, when Sylvain L’Écuyer, a new employee who had just completed his probationary period, was grabbed and crushed by an automatic pallitizer used to stack concrete stabs and blocks at the company’s manufacturing plant in Saint-Eustache.

Investigations into the 23-year-old’s death by both Quebec’s Health and Safety Board (CSST) and provincial police found that a motion-detection safety mechanism with optical beams, which controlled access to a stacking station where the pallitizer automatically grabs cement blocks, had been purposely unplugged at the time of the accident. While no one was found or admitted to having deactivated the system, the investigation revealed that veteran company employees knew how to unplug the system — and often did so, despite the evident danger, to make it easier and faster to take away excess cement blocks — and that management officials at the family-owned business were aware of the situation.

That led Crown prosecutor Vincent Martinbeault to charge the company in 2006. While an individual had already been charged under Bill C-45 (Domenico Fantini, a construction supervisor in Ontario, was charged with criminal negligence after a workplace fatality, a charge later withdrawn after the 68-year-old pleaded guilty to three violations under the province’s Occupational Health and Safety Act and was handed a $50,000 fine), it was the first time a corporation in Canada had been charged and prosecuted with an offence related to a workplace fatality since the Bill C-45 amendments.

In addition to replacing the term “corporation” with the broader term “organization,” which refers to a variety of structures like public bodies, companies, and/or partnerships — a subtle rewording, Cauchon explains to Canadian Lawyer, that lowered and simplified the liability threshold for corporations that had protected the owners and operators of the Westray mine in Nova Scotia in the early 1990s from criminal prosecution for the deaths of 26 miners. The legislative changes make organizations criminally liable according to four elements pertaining to the actions or inactions of their senior officers, in regards to operational safety in the workplace, and impose a legal duty on those officers to take reasonable measures to protect employees from bodily harm or death.

After saying publicly that it intended to fight the charges, Transpavé pleaded guilty last December to a charge of criminal negligence causing death.  However, after three months of deliberation, Quebec Court Justice Paul Chevalier accepted a plea bargain that imposed a fine of $110,000 on the company for not protecting L’Écuyer as stipulated under the province’s Occupational Health and Safety Act. “[Transpavé] should have foreseen the risks,” Chevalier wrote in his ruling, adding that the company’s directors admitted they knew that many of their 100 employees sometimes deactivated the optical-beam security system on the pallitizer. “Transpavé acknowledges having failed in its duty by not putting in place appropriate safety measures to counter [those actions]. It also failed to its duty of authority by not ensuring that its employees respect the safety measures put in

place.”

Despite the loss of life, the judge said management did not unplug the safety device, it was not aware it was not functioning at the time of the accident, it received no commercial benefits from the device’s deactivation, and neither the company nor any of its directors had ever been condemned for “similar behaviour constituting a regulatory penal offence.” The judge also said the company’s owners were “very marked by this accident,” hired a psychologist to help the employees deal with the tragedy, called each employee to tell them when and where the funeral was to be held, and went to the funeral home to offer their sympathies to L’Écuyer’s family. There was also a public apology at the time they entered the guilty plea.

Chevalier also said since the deadly incident Transpavé has spent $750,000 “to ensure that no other tragic accident could occur” by complying to CSST recommendations for the improvement of both the structure and culture of health and safety management at the company’s two manufacturing facilities.

In ratifying the suggestion that a fine of $100,000 would “satisfy the ends of justice,” Chevalier referred to the January 2008 Quebec Court of Appeal ruling in R. v. Bazinet, saying his decision took into account the money spent by the company to meet health and safety recommendations, the need to ensure its survival as an important employer in a rural area, and the “importance of the acknowledgement by Transpavé of its fault and the sense of responsibility it manifested afterwards.”

For his part, Cauchon is satisfied with both the judge’s ruling and its meaning for the former Liberal politician’s baby, Bill C-45. “I followed the case very closely [and] found the judge’s ruling very interesting,” says Cauchon. While it failed to invoke or test certain aspects of his bill’s provisions, such as the judge’s power to issue a probation order against a company that is seen to not be making efforts to improve safety after an accident, he says it displayed the legislative spirit behind the bill — namely to avoid future disasters like the Westray mine. “Our goal was to create a social stigma [and] legal responsibility on employers by getting them out from behind corporate structures,” says Cauchon. “I think this ruling shows we were successful.”

L’Écuyer’s family, like union officials across Quebec, were both quick and harsh in their denunciation of the ruling. “The life of a young worker who was the victim of the criminal negligence of his employer isn’t worth much,” says Michel Arsenault, president of the half-million-member Fédération des travailleurs et travailleuses du Québec, a member of the Canadian Labour Congress and which represents L’Écuyer’s union, the Teamsters, in Quebec. “The Crown prosecutor failed in his job. Justice wasn’t rendered in this case.”

The Teamster’s Veilleux agrees. “The problem we had with this case from the beginning was that we didn’t think the proper charges were laid,” she says, adding individuals like Transpavé’s plant manager, who was aware the safety system was often unplugged by workers, should have also been charged with criminal negligence. “The real shame, besides the death of a young man, is the message the ruling sends to the business community, which is, if you’re responsible for something like this, don’t worry, you’ll just get a fine.”

A labour lawyer for 20 years, Veilleux says she, like all lawyers, applauded Bill C-45 when it came into law. “It was a big improvement over penal fines that were imposed under Quebec’s health and safety laws, which have a maximum of $20,000,” she says. “Employers were being told, ‘You’ll go to jail if you don’t actively watch out and take actions to protect your employees.’ . . . . The Crown attorney in this case missed a beautiful opportunity to put some teeth in this new law.”

She also rebukes lawyers who publicly commended Chevalier’s ruling by saying the $100,000 fine was sufficient because it was five times more than pre-Bill C-45 fines. “What kind of a dissuasive factor is that when companies that constantly have their eyes on the bottom line are looking at an investment of $500,000 or $800,000 to buy the necessary safety technology or features or the possibility of a fine for a fraction of that amount?”

Lawyers who have spent a lot of time and energy advising their clients on the ins and outs of Bill C-45 over the past few years, however, think the judgment sends a strong message. “This ruling helps to map out the corporate playing field in regards to criminal negligence,” says Pierre Pilote, of Gowlings’ Montreal office. “Before [Bill C-45] it was kind of a no man’s land. The system only spelled out fines even in the gravest cases of negligence. Now the onus is on employers to take measures to avoid dangers of corporal injury — or face the prospect of criminal prosecution.” The Transpavé case, he adds, “is a hard reminder that employers don’t have an obligation to just put safety measures in place, they have to make sure those measures are being respected.”

For Toronto’s Ryan Conlin, the most important thing about the ruling is that it shows prosecutors are ready and willing to use the provisions in the Criminal Code. “They are not a paper tiger,” says Conlin, a partner with Stringer Brisbin Humphrey, Management Lawyers.  He says while the Transpavé fine might seem small in, say, Ontario, where the maximum fine for health and safety violations is $500,000, it sets a precedent that will mean that a similar scenario in Ontario “would result in a fine well north of half a million. So, yes, that and the prospect of doing jail time are deterrents to employers. But since the Transpavé case only involved a fine, the jury’s still on the impact of criminal charges on individuals.”