Canadian HR Reporter

CANADIAN HR REPORTER MAY 2018 10 NEWS valid until June 4, 2018 ipm Corporate Group Subscription O er IPM's Online Management Encyclopedia & Workplace Today™ Institute of Professional Management 2210-1081 Ambleside Drive, Ottawa, ON, K2B 8C8 Tel: (613) 721-5957 Toll Free: 1-888-441-0000 Details at : www.workplace.ca/hr-reporter.html $240 regular $800 ... save $560! Order a 12-month corporate multi-user online subscription to Workplace Today™ Online Journal and IPM's Online Management Encyclopedia by June 4, 2018 and pay only $240 (70% o !) This o er includes unlimited users from the same organization. Workplace Today™ Journal – Bene t monthly from well- researched legal information, detailed case studies on timely issues and concise reporting on today's labour trends. IPM's Management Encyclopedia – Canada's rst and only online management reference tool. It provides step-by- step How To's for routine management tasks. Put the power of these skill-based How To's directly into the hands of your management team. to this serious and obvious risk to the safety of Mr. Lévesque that he himself created." It's the first time in Quebec where an employer in the con- struction industry has been ac- cused of both criminal negligence and manslaughter, said Laurence Bourgeois-Hatto, a lawyer at Lan- glois in Montreal. "Usually what happens when there's a worker who is severely injured or dies while perform- ing the job, there are accusations based on the regulations, the Act respecting occupational health and safety… and you can receive a fine." But the facts did not help Fournier, she said. "ere were a lot of witnesses at the trial, and inspectors from the OHS (occupational health and safety) commission that said, 'You know, it was clearly dangerous. If we had walked by and seen that hole how it was, we would have stopped the work and evacuated from there. It was super danger- ous. It was a catastrophe waiting to happen.'" e non-compliance with the Safety Code for the construction industry was so bad that the court concluded a reasonable person placed in the same circumstances would have known there was ex- treme danger for the employee's safety, said Josée Gervais, a part- ner at Gowling in Montreal. "at's not to say any contraven- tion of the code would result in a similar (result), but here, because of the facts and because of the cir- cumstances and consequences, it was considered illegal. e death was caused directly by this con- duct, and the courts said that the conduct of Mr. Fournier was ob- jectively dangerous — someone would have concluded that it was dangerous and that his conduct also did not represent the actions of a reasonable person placed in the same circumstances." e ruling reminds employers of how important it is to follow OHS rules, she said. After a gas explosion killed 26 miners in 1992 in Nova Scotia, the federal government adopted Bill C-45 to make it an offence of criminal negligence to put work- ers' health and safety at risk. And in 2004, the Criminal Code was again modified so it was easier to prosecute organi- zations for criminal negligence when they demonstrated marked negligence related to health and safety, said Gervais. Manslaughter conviction e Fournier decision piggybacks what happened in 2004 when criminal negligence around oc- cupational health and safety was included in the Criminal Code of Canada, said Jeff orne, manager of training and consulting at Oc- cupational Safety Group in Lon- don, Ont. "But, to me, this case is even more important because the bur- den of proof is even less." For an individual or organiza- tion to be charged and convicted of manslaughter, the burden of proof rests with the Crown, he said, and they must prove, beyond a reasonable doubt, that: • the accused committed a strict liability offence and the offence was objectively dangerous • the conduct of the accused party constituted a marked departure from the standard of a reasonable person in similar circumstances • taking into consideration all of the circumstances of the case, a reasonable person would have foreseen the risk of bodily harm. In the Fournier case, the safety code was contravened by not shoring the slopes of the trench. e contravention was objec- tively dangerous, and the contra- vention or breach of safety duty in this case was "a marked departure from a standard of care of a rea- sonable person who would have foreseen the high level of risk posed by the inadequately shored trench," said orne. 'Muddied waters' In looking at what's required to es- tablish a manslaughter charge, the three conditions are very similar to what's seen in many health and safety cases today, he said. "e waters are muddied a lit- tle bit because we're now taking strict liability legislation like the Occupational Health and Safety Act and saying, 'Well, if there's a breach of the act and the breach led to a dangerous activity, and that's the first condition leading to manslaughter, that can get a little messy between provincial legislation and the Criminal Code,'" he said. "But the fact that they've estab- lished this and the fact we've had a conviction now, we've got case law, we've got case precedent now, it's going to be interesting to see how judges interpret this." Looking at any Ministry of Labour cases in Ontario and the three criteria for manslaughter, "you could pick apart a lot of cas- es and say, 'Hey, these could meet those three,'" said orne. And, potentially, the Crown could go for a manslaughter con- viction instead of criminal negli- gence because it's easier, he said. "Those three conditions fit a lot of health and safety cases where trying to prove mens rea and intent and wilful neglect for criminal negligence causing death could be a little more difficult." It's an interesting suggestion — and possible, said Gervais. "ere's not a big difference in between (criminal negligence and manslaughter criteria) but, oddly enough, it's the first time that there's really been a judg- ment rendered for manslaughter in those circumstances, whereas there have been some convic- tions under 217.1 (of the Crimi- nal Code)." And it's true there could well be other cases before the courts that meet the manslaughter criteria, she said. "ere were new sections in the Criminal Code that were re- ally meant to address health and safety contraventions under the criminal aspect of it. I think may- be it was more natural to go down that route, but for the next cases, I think the Crown will really con- sider using both or using only the manslaughter." But Bourgeois-Hatto doesn't think there will be many more cases like this. "I think it's probably an exception. Now that we have this in mind and now that the prosecutors know they can succeed, maybe they will go this way more often, but I think that most employers are sensible to health and safety, and they do their best, and I think that sometimes accidents happen." Either way, if supervisors are not doing their job properly and exercising competency, then the liability can be huge, said orne. "If they're not balancing their efforts between safety and pro- duction, or whatever the other key performance indicators are, and safety is not made part of it, then if something goes sideways or a worker gets injured or worse, essentially what the courts are saying is the penalties could po- tentially be a lot stiffer if it meets these three conditions." e landscape itself is changing, he said. "is really should, for employ- ers and supervisors, basically say to them 'ere could be poten- tially very serious consequences here' because the penalties are a lot more substantial, at least from a jail perspective." 'It'll be interesting to see how judges interpret this' MANSLAUGHTER < pg. 1 "ose conditions fit a lot of cases where trying to prove mens rea and intent and wilful neglect for criminal negligence causing death could be more difficult." "The employer may have to override that to the extent they perceive a general safety risk to the workplace... ese are judg- ment calls that are made in the moment, with limited informa- tion, in a delicate situation. It's not easy stuff." Offering resources It can be difficult if a person dis- closes her situation to a colleague in confidence, and that colleague feels obligated to report it to hu- man resources, said Jurczak. "HR has to find a way to man- age that confidential disclosure," she said. "(They could) work through that employee and try to get the EAP (employee assistance pro- gram) information to the employ- ee that needs it, without hurting the trust relationship." It can be a matter of HR or the supervisor setting up a meeting with the employee to say, "'We're here to support you, there's things we noticed, is there anything we can do to help you?' Not doing it in a disciplinary way, but doing it in a supportive way, and opening up that door," said Coates. "And they may not say anything right at that moment, or they may spill everything, and it really all depends on the sensitivity of the person who's talking to them, as well as ensuring confidentiality." Having somebody from a wom- en's shelter come in to talk about the situation and do a danger as- sessment, or having police come in to do an in-person risk assess- ment and provide information or some kind of intervention is also advisable, said MacQuarrie. A support network at work can really help, and some unions are now providing women's advocates trained to deal with this type of situation, said Coates. "It's really important that the supervisors or managers within a workplace are well aware of what those warning signs are, what pos- sible triggers are, and to head up the support network." "What workplaces can do and employers can do is first be sup- portive and accommodating with- in the workplace," she said. Don't attempt to come up with solutions in solidarity, but work with the employee to find solutions, said Coates. "What can we do to help you make you feel safe here?" Recommend EAP VIOLENCE < pg. 2

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