Document everything and look out for internal commentary about your safety culture, warns lawyer
Rising criminal negligence charges related to workplace incidents couple with recent legal rules have intensified expectations for more regulatory compliance, according to a safety law expert.
Tony Paisana, Partner at Peck and Company, highlighted R v. King in particular as a potential gamechanger.
“Decisions like King really emphasize the importance of compliance with regulations and statutes in the labor world,” Paisana said, underscoring how noncompliance may now carry criminal implications rather than just administrative penalties. He explains that previously, violations of workplace regulations primarily incurred administrative fines or provincial prosecutions, but rulings like King are narrowing the gap between regulatory infractions and criminal negligence, especially in cases involving death or serious harm.
A critical element of this shift is the evolving interpretation of the “marked departure” standard under Canada’s Criminal Code, particularly Section 220(b), which addresses criminal negligence causing death.
“There was a time when it was believed… you might be facing administrative penalties or fines. But there wasn’t really a ton of crossover between a direct violation of regulation or statute and criminal negligence causing death or bodily harm,” Paisana adds. He also says that this distinction is blurring as case law moves to connect noncompliance more directly with criminal negligence, especially when safety infractions lead to severe consequences.
This progression has significant implications for corporate responsibility. As the margin for error narrows, companies must adopt stringent compliance practices to avoid liability.
“Routine or flagrant disregard for [regulations] will put you at risk of criminal prosecution,” Paisana said, noting that the regulatory landscape has become so complex that certain industries face an almost impossible compliance burden. He added that while less intricate industries may have fewer defenses available, complex fields might still use a “marked departure” argument, emphasizing the difference between mere noncompliance and gross negligence.
To mitigate personal liability risks, especially for directors, officers, and safety professionals, Paisana offered practical advice:
“Document everything. Document everything. Document everything. The best possibility of advancing a due diligence defense is making sure that you have written down everything…in advance of an accident, everything that happened during the accident, and everything that happened after.”
In fostering a culture of accountability, Paisana warned of the reputational risks tied to offhand comments on safety.
“Watch commentary in your culture regarding safety,” he adds, as dismissive attitudes towards safety standards can later reflect poorly on individuals and the organization. He cited instances where individuals’ casual remarks came back to “bite” them in legal proceedings, showcasing how internal cultural factors could influence liability perceptions.
The counsel’s role in these scenarios is pivotal. Paisana described counsel’s function as a “buffer” for companies facing serious incidents, facilitating information flow and minimizing legal exposure.
When companies deal with investigations, “counsel can serve as a very good intermediary,” he explained, noting that by controlling information exchange, counsel helps reduce stress within the organization and prevent inadvertent self-incrimination. This position enables attorneys to monitor for regulatory overreach, such as when safety inspections might unlawfully shift towards criminal investigations—a concern linked to precedent set by Jarvis (2002), where regulatory powers were misused to gather criminal evidence.
On preserving legal privilege, Paisana advised that interviews following workplace incidents should be conducted under litigation privilege wherever possible and appropriate. He noted the importance of identifying employees in need of independent counsel to avoid conflicts of interest.
"We try to identify those people at risk and who are in need of independent legal advice,” Paisana says, adding that ensuring fair representation helps prevent individuals from inadvertently incriminating themselves while aiming to assist the investigation.
Paisana also outlined missteps companies commonly make in their efforts to demonstrate due diligence, such as the lack of thorough documentation.
“One of the biggest missteps is you go to try to demonstrate due diligence, and people say, ‘Yes, we would talk about things… but you have no documentation to back up those memories.’”
