The issues and topics safety leaders should pay attention to in the year ahead
This is the 11th installment of the annual trends blog. Thanks to all of you who comment and share your thoughts each year!
- It might be criminal
In a continuing trend, police forces are no longer appearing at serious workplace incidents and automatically handing things off to the OHS regulator. Kudos to the Calgary police service for pioneering this approach. The Calgary police service developed the Krsek protocol inspired by the tragic loss of three-year-old Michelle Krsek killed by falling debris from a construction site in Calgary. The Calgary Police Service trains its investigators and shares their expertise across Canada. A course has been available through the Canadian Police Knowledge Network since 2020. Additional training is scheduled to be rolled out in 2025.
Workplace fatality cases can cross the threshold of criminal manslaughter or negligence. That has always been the domain of the police, and there are certainly cases where the police have been asked to come back into an investigation after the fact to examine the possibility of laying criminal charges.
There are growing numbers of cases where families and even unions, such as the United Steelworkers, are calling for criminal investigations in workplace fatalities.
In February 2024, the RCMP in British Columbia recommended criminal charges in the case of a 2021 crane collapse in Kelowna, BC, that killed five people. In April 2024, an incident in Mississauga, Ontario, resulted in criminal charges against a project supervisor involving a workplace fatality in a tunnelling operation. Last year, a supervisor in New Brunswick was sentenced to three years in prison for criminal negligence involving a 2018 workplace fatality.
Criminal charges in workplace fatalities and serious incidents are becoming more commonplace.
- Sudbury a hotbed?
Kudos to the Crown Prosecutors in Sudbury for helping to move forward our understanding of OHS law. Some may remember that Sudbury had an interesting case a few years back where a business owner was charged criminally over a workplace incident.
Last year, the City of Sudbury went to the Supreme Court of Canada appealing a decision that they were the employer in a case involving a workplace fatality and a contractor. I wrote about the case decision where the City of Sudbury was found to be the employer by the Supreme Court. The City of Sudbury was invited to return to court to plead due diligence. That plea was successful, but the story did not end there. That acquittal is now under appeal.
Sudbury is also the place where the Ontario Ministry of Labour was charged with criminal negligence, causing death in a private prosecution.
There is certainly a move to use the tools available to help ensure workplace safety and promote a better understanding of the health and safety legislative requirements and where those requirements intersect with criminal law.
- Trust in regulators continues to erode
In June of 2024, the Ontario Ministry of Labour was charged in a private prosecution with criminal negligence, causing death in relation to a 2006 fatality.
This is reflective of the public’s general growing distrust of governments and government agencies. However, families taking legal action against regulators is not all that unusual. The effectiveness and competency of regulators seem to be called into question all too often.
There have been other cases in Canada, such as a case some years ago involving the Elliott Lake Mall collapse, where the Ministry of Labour was included in the class action lawsuit. WorkSafeBC has also been the target of lawsuits from families of survivors of those killed and workplace incidents.
Governments and regulatory agencies seem reluctant to address this erosion of trust and faith in regulatory bodies and regulatory officers. It is certainly a challenge that is not insurmountable.
- Harassment is a tort
Harassment and workplace violence (which is really the same thing) continues to be hot topics. The lack of appropriate harassment prevention plans or processes for dealing with complaints and investigating instances of harassment is a serious risk to any organization. In a 2023 judgment in Alberta, harassment was deemed to be a tort. A tort is simply a legal term that means that it is a recognized injustice for which people can seek compensation through the legal system.
This provides another dimension of risk to organizations as employees, particularly those who are not represented by a union, can take direct legal action against the company if they feel they were harassed, and the employer mishandled the case or investigation in some way.
The court laid out some elements of the tort of harassment, including outrageous conduct by the defendant, reckless disregard causing emotional distress, and the plaintiff having suffered severe extreme emotional distress caused by the defendant’s conduct.
There continues to be little attention paid to these matters until there is a serious complaint, and organizations are scrambling to respond appropriately without impairing an investigation or deciding that they will allow an internal person with no real experience to conduct such investigations.
In the case laying out the tort of harassment, $100,000 was awarded for general harassment. Employers also face direct legal costs from their legal counsel.
Some organizations believe harassment does not happen in their organization. The vast majority of these organizations are mistaken. Harassment cannot be dealt with like a health and safety incident. Employers must have a process in place before a complaint is received, and that process must be well laid out to allow the employer to respond appropriately. Much like emergency planning, it is too late to plan for an emergency when one is actually occurring.
- Repeat offenders are subject to higher fines
Ontario took an interesting step in November 2024 OHS legislation to provide stiff penalties for repeat offenders. Employers convicted of having a serious injury would receive a minimum fine of $500,000 for a second or subsequent offence that results in the death or serious injury of one or more workers within two years after the first serious offence.
Everyone familiar with the Pareto principle understands that regulators may spend 80% of their resources dealing with 20% of the employers. There are repeat offenders out there who continue to risk employee safety even after a serious injury or incident. It seems Ontario is sending a message to repeat offenders that repeat transgressions of a serious nature will no longer be tolerated.
It remains to be seen if other jurisdictions will follow suit. Ontario has been a leader in the past in fostering new approaches to health and safety regulation, and this may become a nationwide trend as current fines in cases of workplace fatalities are often difficult for families to understand. In a case that caught national attention, the loss of a 20-year-old involved in hedge trimming resulted in only a $56,000 fine to the company’s owner.
- Fatalities rising?
There has been some talk again this year about how fatalities are rising, particularly in high-risk sectors such as construction. The truth is that fatalities have been rising for a very long time. This is true in most industry sectors, particularly the construction industry. Of course, that is misleading. Statistics must always be assessed with a critical eye. The number of fatalities is rising partly because the size of the workforce is growing.
The fatality rates are normally calculated in fatalities per 100,000 workers. Looking at fatality rates in Canada is very difficult because it is very difficult to gather the data, as I found when researching acute fatalities, excluding illnesses or chronic conditions.
Fatalities are certainly not going down. That has been the case for several decades. The variation in fatalities is probably not statistically significant, meaning that the statistics do vary to a certain degree. However, the trend line is clear. Fatalities in construction are rising. Fatalities in the young worker category are rising more sharply. With an aging workforce, we see more people entering the construction industry. The is an opportunity to do better to protect them from the inherent hazards found in construction.
- Are your supervisors trained?
There has been a slow-breaking trend to hold supervisors directly accountable, particularly in the cases of workplace fatalities. The most recent example is charges laid against a supervisor of a hedge trimming company in Ontario after the electrocution death of a 20-year-old while trimming hedges. The supervisor was charged with criminal negligence, causing death in April 2024. The matter has yet to go to court. The owner of the company pleaded guilty, and the owner of the company pleaded guilty to an OHS civil offence.
Supervisors are often not aware of their direct responsibilities as the employer’s representative in the workplace to ensure the safety of employees. Supervisors must be given the training and the skills they need to effectively supervise personnel and communicate with them in order to coach them in workplace practices and the safe performance of the work.
Supervisors, and by extension, employers, face an elevated risk from poorly trained supervisors or poor oversight.
