Westray Legal Brief summary

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Summary

Amendments passed in 2004 to the Criminal Code of Canada to make it easier to impose criminal liability on corporations for serious workplace injuries and fatalities are being woefully underutilized. There have been only nine successful prosecutions under the Westray amendments to date. Sentences issued in these prosecutions have been palt="image"ry. Serious workplace injuries and fatalities continue to occur at alarming rates.

Governments can take concrete steps to better enforce the Westray amendments in order to hold corporations liable for their criminally negligent actions.

The Westray mine disaster

In 1992, 26 miners died at the Westray mine in Pictou County, Nova Scotia as a result of an explosion caused by a build-up of methane gas and coal dust. Only 15 miners’ bodies were ever recovered. 

The Government of Nova Scotia called a public inquiry to investigate the causes of the disaster. Justice K. Peter Richard presided over the inquiry, which heard 76 days of testimony. 

Justice Richard concluded that the explosions and the workers’ deaths resulted from a combination of corporate neglect and mismanagement, as well as government bungling and indifference. His key findings were:

Justice Richard made over 70 recommendations to improve workers’ healt="image"h and safety, including a recommendation that the Government of Canada amend the Criminal Code to ensure that corporations and corporate executives be held accountable for workplace safety.

The Westray amendments to the Criminal Code of Canada

No individual or corporation was ever successfully prosecuted for the workers’ deaths at the Westray mine. At the time, Canada’s Criminal Code made it difficult to hold corporate executives and corporations criminally liable for serious workplace injuries and fatalities.

For over a decade, Westray family survivors and the labour movement, particularly the United Steelworkers, lobbied the Federal Government and members of Parliament to amend the Criminal Code to make it easier to hold corporate executives and corporations criminally liable for serious workplace injuries and fatalities.

In 2004, the federal Parliament unanimously adopted the Westray amendments to the Criminal Code.  The Westray amendments are primarily focussed on the offence of criminal negligence. 

The Westray amendments make it easier to hold corporations liable for criminal negligence by:

In brief, if a person with the duty to take all reasonable steps to prevent bodily harm to a worker fails to do so, and in failing to do so acts with wanton or reckless disregard for the life and safety of the worker, then that person is guilty of criminal negligence (s. 217.1).

If one or more representatives of a corporation commit criminal negligence and the actions of a senior officer (or officers) of the corporation departs markedly from the standard of care that could be reasonably expected to prevent the representative from committing criminal negligence, then a corporation can be convicted of criminal negligence (s. 22.1).

The maximum penalt="image"ies for a conviction for the indictable offence of criminal negligence under the Westray amendments are:

Individuals

Corporations

Application of the Westray amendments

Between 2004 and 2022, the Westray amendments to the Criminal Code have been utilized in approximately 23 incidents to bring criminal negligence charges in cases of serious worker injury and death. Of those 23 cases, criminal negligence charges were brought against 13 corporations and 17 individuals.

As of early 2022, there have been only nine successful prosecutions under the Westray amendments – four in Quebec, four in Ontario and one in British Columbia. Those prosecutions resulted in the conviction of seven corporations and two individuals. Sentences have been relatively minor.

Sentence: $110,000 fine, plus $10,000 victim surcharge

Sentence: 2 years, less a day, to be served in the community, subject to conditions including a curfew

Original sentence at trial: $200,000 fine, plus $30,000 victim surcharge

Sentence on appeal: $750,000 fine, plus $112,500 victim surcharge

Sentence: 3.5 years imprisonment for each of the five counts, to be served concurrently; conviction and sentence upheld on appeal

Sentence: $1,400,000 fine, $420,000 victim surcharge, plus $805,333 restitution

Sentence: $100,000 fine, plus $15,000 victim surcharge

Sentence: $200,000 fine; employer declared bankruptcy, fine not recoverable

Sentence: $300,000 fine, plus three-year probation order

Sentence: $1000 fine, plus $200,000 victim surcharge

Charges have been withdrawn in five cases; acquittals followed trials in four cases; charges in three cases were stayed by the Crown, including one charge laid as a result of a private prosecution brought by the United Steelworkers; two charges against two individuals and one charge against one corporation are pending.

More comprehensive summaries of these cases can be found at Appendix “A” to this Report.

Worpplace fatalities in Canada continue at alarming rate

Between about 900 and 1000 workers die due to work-related causes in Canada every year. 

* Source: Association of Workers’ Compensation Boards of Canada

According to data from the Association of Workers’ Compensation Boards of Canada, 925 workers died due to work-related causes in 2019. In 2018, 1,027 workers died due to work-related causes. Data for 2020 will be available some time in 2022.

For more information on statistics related to workplace fatalities in Canada and comparisons across the provinces and territories, please refer to the 2021 Report on Work Fatality and Injury Rates in Canada prepared by Sean Tucker and Anya Keefe from the University of Regina.

Reasons why the Westray amendments are not being utilized more

Key reasons for the under-utilization of the Westray amendments:

What is needed for better enforcement of the Westray amendments?

 

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Media Contacts

Communications Director:
Shannon Devine
sdevine@usw.ca
416-544-5946 or
416-894-7118

Communications Department - Québec
Clairandrée Cauchy
ccauchy@metallos.ca
514-774-4001 

Mailing Address

United Steelworkers
234 Eglinton Ave. E., 8th Floor
Toronto, ON M4P 1K7