Supervisor Facing
Criminal Charges Related to Workplace Health & Safety
'Under Bill C-45'
February 10th, 2008
It was recently
reported in the press that a 68-year-old construction
supervisor in Ontario became the first person in the
country charged under the new Health and Safety criminal
liability of organization under the Criminal Code
(Bill C-45). Domenico Fantini, of Newmarket, Ontario,
was arrested by York Regional Police and charged with
criminal negligence causing death on August 26, 2004.
Mr. Fantini is scheduled to appear in court on September
28. If convicted, he could face up to life in prison.
On April 19, 2004,
Mr. Fantini was supervising two workers who were
repairing a drainage problem in the foundation of a
house when the trench they were working in collapsed.
Ameth Garrido, a 38-year-old Toronto man, was in the
trench when the ground gave way and was trapped by heavy
dirt. Mr. Fantini desperately clawed at the ground,
trying to rescue his co-worker, but couldn't get to him.
By the time emergency workers arrived on the scene,
Garrido died. The Ontario Ministry of Labour spent
months looking into the incident, and their conclusion
has led police to believe there’s cause to charge the
68-year-old with criminal negligence causing death.
The new provisions
in an Act to amend the Criminal Code (criminal
liability of organization) which came into force
last March, increases the risk of exposure to criminal
liability in respect of workplace health and safety
above and beyond the existing obligations and
liabilities under Occupation Health and Safety
legislation. The Act imposes a duty on employers and
those with the power to direct how others work to take
reasonable steps to ensure the safety of the persons
performing the work as well as the public nearby. It
clearly defines responsibility for safety in the
workplace and allows for prosecution under charges of
criminal negligence when those responsibilities are
recklessly or willfully disregarded. The Criminal
Code states "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." In
general, for an organization to be found guilty of
committing a crime of negligence, the evidence will have
to show that employees of the organization committed the
act and that a senior officer should have taken
reasonable steps to prevent them from doing so. In
offences based on negligence, the court must determine
whether an individual acted so carelessly or with such
reckless disregard for the safety of others as to
deserve criminal punishment.
Norman Keith, a
partner at the Toronto law firm of Gowling Lafleur
Henderson and author of Workplace Health and Safety
Crimes, said "the charges send a message that the
amendments ushered in by Bill C-45 are real and they
will be enforced... It’s definitely a wake-up call for
employers of all kinds, not just construction, that (the
law) is going to be aggressively enforced by the police,
probably with the encouragement or assistance of health
and safety regulators, ...It’s also a big wake-up call
for supervisors and managers to say ‘Look. Bill C-45
puts you personally at risk, not just the president of
the company.’ And I think they’re at greater risk than a
senior executive or a director. Because the police on
the ground are going to say, ‘Okay, something awful has
happened. Who is in charge here?’ And the most
proximate, closely-related person in charge is going to
get the most scrutiny."
Employers need to ensure that they have implemented good
workplace health and safety policies and practices,
including employer due diligence. They must also ensure
that these practices are being consistently followed by
senior officers, employees and all other representatives
of their company. A review of health and safety policies
and practices is highly recommended - including thorough
training and education - to ensure they are complying
with the Act.
