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Criminal Code charges against Employer and Union?

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Idealist	Posted: Sun Jan 17, 2010 3:47 pm
Joined: 23 May 2009 Posts: 104	Please refer to: http://forums.uncharted.ca/viewtopic.php?t=1471&postdays=0&postorder=asc&start=60 for the history of this new thread of mine. ----------------- In the USA, if an employer and a union purposely concealed a medical diagnosis from an employee and then injure that employee via unlawful discipline, both the employer and the union would be criminally and civilly liable. In Canada, each province has an Occupational Health and Safety Act and a violation as described above would only involve a monetary fine and a potential prison term. However on March 31, 2004, Canada amended its Criminal Code via Bill C-45 to include the following new Section re: Health and Safety such that a violation would incur criminal liability on the part of an "organization", officers, managers and supervisors of the organization. ---------------- Bill C-45, appropriately titled Stronger Laws Affecting the Criminal Liability of Organizations, amended the Criminal Code of Canada on March 31, 2004. Most supervisors and front-line managers have understood by now that protecting employees from accident and injury in the workplace forms a significant part of their daily responsibilities under their respective provincial Occupational Health and Safety Act. Their provincial Act places specific duty of care provisions squarely on the shoulders of supervisors and front-line managers with heavy penalties and potential jail sentences for non-compliance. To be sure, in the event of a prosecution, strict liability has been modified by allowing the employer to use as a defence the grounds that he has “taken every precaution reasonable in the circumstances”. What has not always been that well understood, however, is how this onerous responsibility of due diligence plays out in practice. Since Bill C-45 is federally legislated, it imposes an occupational health and safety duty on individuals, organizations and their decision-makers across the country. Among other important changes to the Criminal Code, this legislation establishes negligence as a criminal offence. Maximum penalties include life imprisonment for an individual and a fine with no maximum limit for organizations. This is the first time in Canadian history that a legal duty with respect to the health and safety of workers and the public has been imbedded in the most important of Canadian penal statutes, the Criminal Code. To the surprise of many occupational health and safety professionals, human resources practitioners and even lawyers in the field, the legal defence of due diligence is not available to the new criminal offence of occupational health and safety criminal negligence. The new legislation not only codifies, but expands the existing common law principles developed to deal with corporate criminal responsibility. The legislation introduces radical changes in the way that corporations are held criminally liable under Canadian law. In particular, via amendments to the Criminal Code (“Code”), the legislation ensures organizations are held accountable when they commit criminal offences. Prior to the amendments to the Code, although a corporation could be subject to a charge of criminal negligence, this was rarely done because of the lack of direction in the Code on how to hold a corporation as opposed to an individual liable for negligence. Bill C-45 is now part of Sections 22.1, 22.2, and 217.1 of the Criminal Code. Bill C-45 created a Criminal Code duty for organizations and their representatives to take every reasonable precaution in order to protect their workers as well as the general public. Bill C-45 imposes criminal liability on organizations for negligence (Section 22.1), even in the case that no single individual has committed a criminal offence, by aggregating the requisite mental and physical elements of the crime from multiple individuals. Organizations are also liable for criminal offences other than negligence through the conduct of their senior officers (Section 22.2). There is no time limitation for the laying of charges. THE NEW HEALTH AND SAFETY CRIMINAL GROUND The legislation accomplishes the objective of holding organizations accountable for health and safety matters by establishing a new health and safety duty. That duty is set out in Section 217.1 and provides as follows: “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 actual offence is set out in Section 219 (1) of the Code and provides as follows: “(1) Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. (2) For the purposes of this section, “duty” means a duty imposed by law.” This “duty” applies to “representatives” as defined in the Code. A representative is defined in the Code as a “director, partner, employee, member, agent or contractor of the organization. The duty also applies to “senior officers” defined as, “means a representative who plays an important role in the establishment of the organization’s policies or is responsible for managing an important aspect of the organization’s activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer.” An accused is reckless when he/she is aware that there is a danger that his/her conduct could bring about the result prohibited by the criminal laws, but nevertheless persists in his/her conduct, despite the risk. The Criminal Code imposes an affirmative obligation on a senior officer who knows that a representative of the organization (i.e. a director, partner, employee, member, agent, or contractor) is, or is about to be a party to an offence, to take “all reasonable measures to stop them from being a party to the offence”. The criminal negligence of organizations is assessed from the standpoint of its representatives and its senior officers. Negligence is established if the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs markedly from the standard of care that could reasonably be expected to prevent the offence. ------------- To wm pasz and others: Should I contact the police department and ask them to investigate my situation and if warranted, the police can lay charges against my employer and union?
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wm pasz	Posted: Sun Jan 17, 2010 4:47 pm
Joined: 29 Jan 2006 Posts: 1180 Location: Toronto	No Idealist you should not bother calling the cops - unless you are dead as a result of your employer's negligence, preferably through some incident or accident in the workplace. Although the legislation you're referring to could be interpreted very broadly the reality is that it has so far been given a very narrow application (where a worker is killed on the job as a result of some very obvious neglectful act on the part of the employer - see http://www.ccohs.ca/oshanswers/legisl/billc45.html for an overview of the only two Ontario cases to date) and it's unlikely that it will be applied to encompass circumstances such as yours. Sorry to be the bearer of bad news, but that's how it is. _________________ Time is on the side of the oppressed today, it's against the oppressor. Truth is on the side of the oppressed today, it's against the oppressor. You don't need anything else. - Malcolm X
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loonietunes	Posted: Sun Jan 17, 2010 10:39 pm
Joined: 30 Mar 2006 Posts: 1210	Idealist wrote: In the USA, if an employer and a union purposely concealed a medical diagnosis from an employee and then injured that employee via unlawful discipline, both the employer and the union would be criminally and civilly liable. I think what you are saying is that.... If for instants an Employer,or a Union, or anyone in the know withheld certain treatment of someone's serious diagnosis and this lack of treatment or medical help led to some sort of catastrophe like we witnessed at Fort Hood then yes, folks withholding treatment would be held criminally accountable. I think it all boils down to what illness we are talking about here and what the people in the know knew about that person's illness and what if anything was done to help the individual with the given illness and what actually happened because of the lack of treatment. I am using the Fort Hood example only to illustrate the point that if the US Military Brass knew that this guy was suffering from some sort of acute stress related medical disorder and did nothing to help him when presented with valid and numerous warning signs then obviousely they will have to be held accountable to the families of every Fort Hood Victim. The same would hold true in any other work place environment where an Employer, Union or Supervisor for that matter knew of someone's medical diagnosis and did nothing to try and help the afflicted worker and then said worker snapped. _________________ "BE STRONG AND OF GOOD COURAGE"
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Idealist	Posted: Mon Jan 18, 2010 2:18 am
Joined: 23 May 2009 Posts: 104	loonietunes, from a natural justice standpoint, yes, I would agree with you wholeheartedly. It seems only fair that a manager/supervisor/HR personnel or your employer's President & CEO should be held criminally liable for recklessly injuring you physically and mentally and if your union collaborated in injuring you, they (union prez, union lawyer who counselled the union prez to go along with your employer's scheme, chief steward, etc.) too ought to be thrown in the slammer. Unfortunately here in Canada as wm pasz pointed out, the Bill C-45 amendments to the Criminal Code have a very narrow interpretation such that unless there is a "death" and is highly publicized, no organization/CEO/manager or supervisor will be charged let alone imprisoned. In my case, I'm still alive, therefore no dice.
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Lex87	Posted: Thu Apr 01, 2010 12:00 am
Joined: 31 Mar 2010 Posts: 4 Location: Victoria	This is bang-on as far I am concerned. Fairness is one thing, law, and your options are another all together. I do a lot of editing work for a really good toronto lawyer and I'll pass this under his nose to see if there's something we're missing as far as action you could take. Sucks.. :p _________________ Love is a snowmobile racing across the tundra and then suddenly, it flips over, pinning you underneath. At night, the ice weasels come.
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Idealist	Posted: Thu Apr 01, 2010 12:41 am
Joined: 23 May 2009 Posts: 104	Lex87 wrote: This is bang-on as far I am concerned. Fairness is one thing, law, and your options are another all together. I do a lot of editing work for a really good toronto lawyer and I'll pass this under his nose to see if there's something we're missing as far as action you could take. Sucks.. :p Lex87: I could hug you! Yes, please tell us what your lawyer has to say. Thanks.
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