Why employers should have 'a robust internal investigation protected by privilege'
Across Canada, courts are sharpening their focus on workplace safety, ushering in a new era where criminal negligence charges increasingly follow workplace fatalities. Following the OHS Law Masterclass this week, one legal expert warns the implications for supervisors, managers, and directors are profound. Tony Paisana, a seasoned trial and appellate lawyer and partner at Peck and Company, is sounding the alarm: the line between regulatory infractions and criminal liability is becoming perilously thin.
“Criminal negligence,” Paisana explains, “is defined as doing anything or omitting anything that you have a duty to do that shows a wanton and reckless disregard for the lives or safety of other persons.” He stresses the gravity of this standard, describing it as “negligence plus, plus.” In other words, it’s not enough for an employer to simply comply with safety regulations. They must actively and demonstrably ensure safety measures are robust and rigorously enforced.
Key cases set the tone
Paisana points to recent court decisions that illustrate this growing trend. In the landmark R v. King, a New Brunswick manager was convicted of criminal negligence after failing to comply with confined space safety regulations, which led to a worker drowning. “Mr. King was charged for not taking reasonable steps to make sure that the confined space legislation and regulations were complied with,” Paisana says, adding that this case highlights the increased risk of prosecution supervisors now face.
Another case, R v. Urgiles, centered on a workplace vehicle fatality where a supervisor neglected to ensure that vehicle maintenance checks were completed. This negligence proved fatal. “He was criticized for not taking steps to check the tread of the vehicle or ensure the steering system was inspected,” Paisana notes. The result? A conviction for criminal negligence causing death.
These cases, Paisana argues, reveal a critical shift in enforcement. “The risk profile is different today,” he says. “We are seeing the line between compliance with workplace safety regulations and criminal negligence blurring and becoming closer.”
Prevention and preparedness are key
For safety professionals, the stakes have never been higher. Paisana emphasizes that documentation and proactive planning are essential. “Document everything,” he urges. “It is the bane of every criminal lawyer’s existence when witnesses say, ‘We did have safety practices, but we didn’t write them down.’”
He also highlights the importance of cultivating a safety-first culture, noting that offhand comments or complaints about lax safety standards can be weaponized in court. “It lends itself to an argument that the corporation or senior manager doesn’t take safety seriously,” he warns. “That can really colour the facts of a particular case.”
When tragedy strikes
Paisana also offers advice for navigating the chaotic aftermath of a workplace fatality. Multiple agencies, including police, regulatory bodies, and unions, often descend on the site, each with its own priorities. He recommends having a clear plan to control the flow of information. “I always recommend having a buffer,” he says, ideally a lawyer familiar with civil, criminal, and administrative liabilities. This buffer helps manage interactions with investigators and minimizes the risk of unnecessary self-incrimination.
Post-incident procedures, Paisana says, are critical in limiting liability. “Having a robust internal investigation protected by privilege is a really important aspect of protecting the company and senior managers,” he advises.
New normal for workplace safety
As Canada grapples with the consequences of workplace fatalities, Paisana’s insights offer a roadmap for navigating this challenging terrain. The convergence of regulatory and criminal law means that safety professionals, now more than ever, must be vigilant. “The threshold for a criminal conviction is high,” Paisana concedes, “but it is not unattainable.”
From preventive measures to post-incident strategies, Paisana underscores one key message: a proactive approach to workplace safety isn’t just best practice—it’s now a legal imperative.
