Federal Legislation for Lone Workers in Canada – the Westray Law (formerly Bill C-45)
Legislation for lone workers
On May, 9, 1992, after being open for less than eight months, a massive explosion killed 26 miners deep in Plymouth, Nova Scotia’s Westray Mine. The youngest miner was 22 years old and the oldest 56.
Five months after the explosion, the Department of Labour filed 52 charges under the Occupational Health and Safety Act, against Curragh Resources and four local mine managers. This catastrophe devastated the tiny, tight-knit maritime town, but also sent shockwaves across the country, raising awareness of the importance of worker safety, regardless of the industry. 10 years after the accident, the federal government introduced Bill C-45 – or the “Westray Bill” – which established a legal responsibility for all people who “direct the work of others” to ensure the safety of their workers as well as the public. The Westray Bill was one of the pioneering legislation for lone workers, introducing new sections of the Criminal Code of Canada so that negligent corporation can be charged criminally if they fail to take the necessary steps to protect their employees.
The main sections of the Criminal Code as related to worker safety include:
Created rules for establishing criminal liability to organizations for the acts of their representatives.
Establishes a legal duty for all persons "directing the work of others" to take all reasonable steps to ensure the safety of workers and the public.
Sets out the factors that courts must consider when sentencing an organization.
Provides optional conditions of probation that a court may impose on an organization.
As a result, Canada is peerless when it comes to strong protections for lone workers. Strong legislation passed at both the federal and provincial levels has created an environment where, for the most part, lone workers receive an unparalleled level of attention. While it’s easy to make the legislation available, we felt it would be important to discuss in a more general way the current state of lone worker legislation in Canada.
Canadian worker safety laws and the Westray bill (Bill C-45)
Federal legislation applies evenly to all territories and provinces in Canada, which makes legislation for lone workers at this level the most general, but also what dictates the punishment for a general failure to protect any worker. In Canada, the piece of legislation that matters most is the Westray bill or formerly known as Bill C-45. This piece of legislation for lone workers was passed into law in 2004, and it assigned criminal liability for businesses who failed to adequately protect their workers in the event of an accident, especially when resulting in a fatality. It compels businesses to take all reasonable steps to prevent harm to workers, and a failure to take these steps can result in significant fines, penalties against the company, and considerable time spent in jail for the individuals responsible for failing to enact all reasonable steps. The language in bill C-45 is meant to be broad enough to apply to all workers and all organizations, not just those at risk. The interpretation of the law is such that “reasonable steps” are dependent on the circumstances around the work, and Lone Workers carry an additional set of risks that many employers don’t consider beforehand.
Mandatory, legal safety obligation
Made clear, this means that employers have a legal obligation to take all available steps to protect their workers, and every additional action necessary to guarantee that safety for Lone workers, as well as putting forth the effort to identify all plausible workplace risks. In the next article, we’ll take a look at what strong provincial legislation for lone workers looks like, and what it means for lone workers in those provinces.
The Canadian Centre for Occupational Health and Safety says, “corporations cannot be imprisoned if convicted under the Criminal Code. Changes due to the Westray bill have increased the maximum fine on an organization for a summary conviction offense (less serious offenses where individuals could face up to six months in jail and or a $2000 fine) from $25,000 to $100,000. The more serious offenses have no limit.”
When determining a fine, the court will consider the following factors:
Moral blameworthiness:
The economic advantage gained by committing the crime
The degree of planning involved
Public interest:
The need to keep the organization running and preserve employment
The cost of investigation and prosecution
Any regulatory penalties, which are distinct from those under the Criminal Code, imposed on the organization for the offense
Prospects of rehabilitation:
Penalties imposed on managers and employees for their role in the crime
Previous convictions or regulatory offenses
Restitution:
Compensating victims shows that the organization is trying to make up for the harm it caused.
Attempts to hide assets to avoid paying a fine
Measures are taken to reduce the likelihood of further criminal activity
Protect the workers and the company
The point of the Westray bill is not to police companies on their worker safety programs. The bill has simply established a long-needed legal duty for all persons directing the work of others to take reasonable steps to ensure the safety of workers and the public. Since its inception in the 90s, the bill has arguably protected millions of workers while providing restitution and closure to families of the victims.
After the tragedy, the people of Plymouth built a memorial for those who died in the nearby community of New Glasgow. Inscribed below the names of the deceased on the memorial it reads, “Their light shall always shine” and this light continues to shine with big steps forward like Bill C-45.
To read more about work-alone legislation in each province of Canada read our previous blog article: Federal Legislation for Lone Workers in Canada: Could You be Breaking the Law and Not Realizing It?