Understanding Bill C-45: Directing the Work of Others
Source: BrantHR Staff
The federal government passed legislation, effective March 1st 2004, which amends the criminal liability of corporations. Bill C-45 imposes a clear legal duty on every person who employs or directs another person in the performance of work. In part, they must take reasonable care to avoid foreseeable harm to the workers or to the public.
In order for charges to be laid, there must be a failure to perform the duty to prevent bodily harm to a person; and the failure must occur in a way that shows wanton and reckless disregard for the safety of others (mens rea). It must be proven beyond a reasonable doubt that the individual or the organization was reckless in regard to the consequences of their safety (or lack of safety) conduct. They also ought to have reasonably known what the outcome would be or it can be determined that they were willfully blind to the consequences of their actions1.
Changes Under Bill C-45
Some of the ways in which this enactment amends the Criminal Code is to:
- establish rules for attributing to organizations, including corporations, criminal liability for the acts of their representatives;
- establish a legal duty for all persons directing work to take reasonable steps to ensure the safety of workers and the public;
- set out factors for courts to consider when sentencing an organization; and
- provide optional conditions of probation that a court may impose on an organization2
This change focuses on the level of responsibility of the individual, rather than organizational title. This means that supervisors, joint health and safety committee members, and lead hands creating and implementing policies and procedures have added responsibility to ensure that proper training is carried out in the most effective manner; and that all documentation recording these actions is in order.
In establishing the legal duty of all those who employ or direct another person in work, Bill C-45 extends and defines responsibility to include not only supervisors and lead hands, but also to include co-workers that are responsible for training others on how to perform job duties. For example, if the organization has one worker directing another, though they do not have the power to discipline the worker they are directing, they are obligated to stop any unsafe work practices they observe. This is an important change in the law. Organizations need to establish clear guidelines and policies regarding new orientation and training. Bill C-45 states “Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task3.” This part of the act should be clearly communicated to all people within an organization to ensure that they understand that they are legally obligated to take reasonable steps to prevent unsafe work practices. It should be noted that this precaution of safety also includes the welfare of the general public and volunteer workers who may be in or near the work site, not necessarily just the paid workers under the direct umbrella of an organization. This section of the Act includes charitable and volunteer organizations, which are not traditionally covered by occupational health and safety legislation. Also covered are the subcontractors at work sites that are paid by third party organizations, including temporary workers.
When sentencing an organization, these are the ten determining factors for the courts to consider under Bill C-45:
- any advantage realized by the organization as a result of the offence;
- the degree of planning involved in carrying out the offence and the duration and complexity of the offence;
- whether the organization has attempted to conceal its assets, or convert them, in order to show that it is not able to pay a fine or make restitution;
- the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees;
- the cost to public authorities of the investigation and prosecution of the offence;
- any regulatory penalty imposed on the organization or one of its representatives in respect of the conduct that formed the basis of the offence;
- whether the organization was - or any of its representatives who were involved in the commission of the offence were - convicted of a similar offence or sanctioned by a regulatory body for similar conduct;
- any penalty imposed by the organization on a representative for their role in the commission of the offence;
- any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the offence; and
- any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence4.
Consideration must be given to each subsection by the courts when sentencing the organization for the offence. Consideration is given as to the impact the fine would have on the business. Would it be so large as to close down their business, or would it make a significant dent only? Restitution that the organization has taken on their own is an important part of sentencing, as well as the likelihood that the organization would commit a similar offence in the future.
The court may prescribe, as additional conditions of a probation order made, that the offender does one or more of the following:
- make restitution to a person for any loss or damage that they suffered as a result of the offence;
- establish policies, standards and procedures to reduce the likelihood of the organization committing a subsequent offence;
- communicate those policies, standards and procedures to its representatives;
- report to the court on the implementation of those policies, standards and procedures5;
Organizations should have a member at the highest level of seniority to head their health and safety practices to ensure and direct accountability at the lower levels. This creates an effective and traceable bottom to top reporting structure. Establishing and monitoring issues as they arise is the best defense against charges being laid.
- Edwards and Conlin, “OH&S Due Diligence Update”, Stringer Brisbin Humpfrey September 29th 2006 ↑
- Federal Government of Canada Bill C-45 Summary November 7th, 2003 ↑
- Federal Government of Canada Bill C-45 November 7th, 2003 S 217.1 ↑
- Federal Government of Canada Bill C-45 November 7th, 2003 S 718.21 ↑
- Federal Government of Canada Bill C-45 November 7th, 2003 S 732.1 (3.1) ↑