Canadian Safety Reporter

4 Canadian HR Reporter, a Thomson Reuters business 2016 CSR | October 2016 | News No one was ever prosecuted for the disaster, although Justice Peter Richard, who investigated the event, noted in his report, "The Westray story is a com- plex mosaic of actions, omis- sions, mistakes, incompetence, apathy, cynicism, stupidity and neglect." Following the disaster, the United Steelworkers Union (USW) lobbied for an amend- ment to the Criminal Code, allowing employers to be held criminally responsible if they failed to provide a safe work en- vironment. It took 12 years, but in 2004 Bill C-45, also known as the "Westray Bill," came into effect. This did not, however, open a floodgate of criminal pros- ecutions. During the 10 years following the introduction of Bill C-45 — despite the fact that workplace fatalities remained constant during that time, ac- cording to the Association of Workers' Compensation Boards of Canada — there were only nine prosecutions under Bill C-45 and only five of those cases resulted in convictions or guilty pleas under the Criminal Code. In 2013, the USW launched a campaign called Stop the Kill- ing, reporting on its website: "Even though more than 1,000 workers each year are killed at work, police and prosecutors are not utilizing the Westray amendments, and not inves- tigating workplace fatalities through the lens of criminal ac- countability." "What we see now, with the MOU, is the cumulative effect of the union being vocal about Bill C-45 not being enforced," says Adrian Ishak, a partner with Rubin Thomlinson in To- ronto. What changes now? "The MOU is largely proced- ural," says Ishak. "It's really in- tended to create a context or environment where police are prompted to investigate these matters." With the new agreement, steps to take in the case of bodily harm or a fatality at a mining site are clearly mapped out. "This MOU deals with the bridging issue of jurisdictions," says Jason Beeho, a partner at Levitt and Associates in Toron- to. "When an incident happens, the first responder is the Minis- try of Energy and Mines. Now, with the MOU, there needs to be a collaboration, a protocol in terms of determining how and when the police are brought into matters." Beeho adds, "The MOU says clearly, this is how the collaboration is going to work. There is a structure and a protocol for how and when the police are going to interact with the provincial health and safety authorities." Impact on police involvement "From a big picture, pragmatic point of view, there's a reason Bill C-45 has been invoked as in- frequently as it has been over the past several years," says Beeho. "The Ministry inspectors know what they're doing; that is what they do. And you've got police departments who've got broad responsibility for enforcing all kinds of criminal law, and who don't always have the resources to pursue these things." He adds, "What this means is that, in the end, the police have not histori- cally been involved unless we're talking about the most serious, the most egregious health and safety issue." Until now, Beeho points out, the provincial health and safety authorities have had the discre- tion to determine when some- thing is a police matter. The new MOU clearly spells out when po- lice will step in. "It's not going to mean that every time someone has a fall or breaks an arm the police are nec- essarily going to be on the scene," says Beeho. "The Ministry is still very much involved, still at the forefront, but the MOU formal- izes and proceduralizes when and how the police become in- volved." If police are on site more fre- quently, there's not universal agreement about what impact this would have on safety. "From a mining safety perspective, I don't know that this makes any- one safer," says David Law, part- ner with Gowling WLG. "Min- ing safety is the product of very specialized expertise, which the police will never have. It's hard to see what they bring to the table." He adds, "From a public interest perspective, if this agreement actually pulls police into these matters more often, the question arises whether that's the best use of police time and money, when so many other things de- mand police attention," says Law. "There is always a trade off of public resources." Changes ahead? "What this is intended to be, in my opinion, is a signal to that industry in B.C. that this is go- ing to be taken more seriously on a go-forward basis and that they should govern themselves accordingly," says Ishak. "It's one more signal to the mining industry that to the extent that they are taking health and safety casually, that they may want to sit up and take notice and start taking the steps they need to take. Day-to-day operations aren't likely to undergo significant changes, though. "This isn't the 1940s or 1950s," says Beeho. "Mining operations now are generally very sophisticated operations, and they are gener- ally staffed by people who are knowledgeable about health and safety compliance and who take those obligations very seri- ously." Instead, suggests Beeho, what the MOU is more likely to do is inspire operations to give their policies and procedures a fresh look. "In order to be deemed crimi- nally negligent, the law has to demonstrate that an employer didn't meet the standards of due diligence of a reasonable person," says Ishak, "So this will definitely be an opportunity for employers to review what due diligence they've under- taken in order to address risks in the workplace and determine whether they are satisfied with the steps that they've taken in order to defend against any po- tential prosecutions under the Westray Bill." To some degree, the MOU's chief impact may be to raise awareness for all involved par- ties, suggests Beeho. "A lot of police departments and crowns are not familiar enough with Bill C-45 and what they can do with the legislation." He adds, "What I don't see happening, though, is that prosecution un- der criminal law needs becomes the first tool out of the toolbox in terms of occupational health and safety. There's a reason why the provincial authorities are so well trained at what they do. The Ministry is going to remain at the forefront of this, but to the extent that there's been a real paucity of prosecutions up to now, maybe this will start to change things." "While this agreement looks like the criminal law may be ap- plied more frequently, I don't think the agreement necessar- ily will result in that," says Law. "It simply allows for police to take over the scene first which, frankly, they could do in any event, and they are often the first people at an accident site, anyhow." Ripple effect? "To my knowledge, this MOU is the first of its kind in Canada," says Beeho. "It will be interesting to watch the extent to which the Steel- workers and other unions are now able to push for and intro- duce similar MOUs in other contexts." New MOU < pg. 1 Formalizing and proceduralizing police involvement During the 10 years following the introduction of Bill C-45, there were only 9 prosecutions, with only 5 of those cases resulting in convictions or guilty pleas under the Criminal Code, despite the fact workplace fatalities remained constant.

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