Danger Pay

The reach of an incident on Christmas Eve, 2009, one that claimed the lives of four migrant workers and critically injured another, seems to have no end. The image of a scaffold separated in two extends beyond the wreckage of mere equipment, touching the lives of those left to mourn and to recover. But the events of that day have taken hold elsewhere, moving beyond personal to produce a twist of charges, safety campaigns, reviews, lawsuits and calls for action that may, ultimately, offer some promise of improvement.

HARD DAY

On the late afternoon of December 24, 2009 – as many Torontonians were readying for the impending festivities – a crew of workers were toiling away at the 13th-storey level of a high-rise building in the city’s west end.

Metron Construction Corporation had been contracted by building owners to repair and restore concrete balconies. Six workers were on a swing stage being used to do the work when a seventh man tried to board the unit, notes a statement from the Toronto Police Service (TPS). At that point, the swing stage broke into two pieces and one worker, who was attached to a lifeline, was pulled to safety, police report.

Not so for the others. The migrant workers were sent plummeting to the ground below. Fayzullo Fazilov, Aleksey Blumberg, Alexander Bondorev and Vladimir Korostin were pronounced dead at the scene. Dilshod Marupov, a 22-year-old survivor, sustained broken legs and severe spinal injuries.

It seems everything that could be done, at least in the aftermath, is being done to send signals that what happened was unacceptable. Consider that the deadly incident is among a scant few to prompt charges under both the Criminal Code of Canada and provincial health and safety legislation.

The latter are more familiar, although the number, at 61, has few equals, even in prosecution-poised Ontario. Thirty counts have been filed against Metron Construction Corporation, as the employer and constructor; 16 against a company director; eight against a company supervisor; four against the platform supplier, Swing ‘N’ Scaff; and three against a director for that company.

The charges hit on numerous legislative demands under Ontario’s Occupational Health and Safety Act, including the need to ensure that proper fall arrest systems are provided; a platform is not overloaded; and a supplied platform is in good condition.

Like many others, Sid Ryan, president of the Ontario Federation of Labour (OFL) in Toronto, had questions following the collapse: “How much on-the-job training and experience did these workers possess? Was there a qualified tradesman on the job with these workers? Did they receive any supervision?” Ryan asked at the time.

When the oh&s charges were announced last summer, Ryan said his hope was that criminal charges would follow. That they did in early fall.

Metron Construction, Joel Swartz, Vadim Kazenelson and Benny Saigh each face a charge of criminal negligence causing bodily harm and four counts of criminal negligence causing death, notes the TPS statement.

“This is the signal to employers that we have been waiting for. It says to every CEO and manager that workers’ deaths are serious matters with real penalties attached,” Ryan said at the time.

Norm Keith, a partner with Gowlings law firm in Toronto, says he is seeing indications of a growing openness to Bill C-45 charges, amendments under the Criminal Code that add a duty of care for those who direct work. The recent charges tell employers that where a high-profile work-related tragedy has occurred, “it is likely you will be targeted for criminal and regulatory prosecution,” Keith suggests.

With so few C-45 charges pursued, Ryan Conlin, a partner with Stringer Brisbin Humphrey in Toronto, says that there was “a sense in some circles that Bill C-45 was a paper tiger, that it wasn’t something that prosecutors were prepared to use.”

With the recent charges, though, the message is now that “criminal charges are on the table for cases of very serious workplace negligence, where there’s some evidence that it was more than a technical breach of the OH&S Act [and where] there’s been a level of negligence from an employer that rises to what the courts call wanton and reckless,” Conlin points out.

Keith points out that there are C-45 cases pending in both Ontario and in British Columbia. Criminal charges have been laid in the 2009 death of a City of Sault Ste. Marie employee who became pinned in an excavation by a large crane. Millennium Crane Rentals Ltd., company president David Selvers and crane operator Anthony Vanderloo each have been charged with criminal negligence causing death.

Across the country, United Steelworkers Canada launched a prosecution bid last fall to have criminal charges laid against Weyerhauser Company Ltd. The bid for charges follows the death of a British Columbia worker in 2004 who was engulfed in wood waste while cleaning a machine at a sawmill.

Weyerhauser Company was ordered to pay a $297,000 penalty after an investigation by WorkSafeBC in Richmond, British Columbia determined that supervisors and management were aware that the processes for clearing the machine “posed a significant risk to workers, but the employer made no significant changes to address the hazard until after the fatality.” The violation was characterized as committed “willfully or with reckless disregard.”

In the Transpavé Inc. case, the only successful C-45 prosecution to date, investigators determined that equipment had been manipulated not to operate as safety would dictate.

Lisa Gallivan, a partner with Stewart McKelvey in Halifax, says that because the standard is so much higher with criminal charges, that may be one reason for so few C-45 charges.

Gallivan emphasizes that she does not want to “diminish” the seriousness of a health and safety incident. However, not all fact scenarios warrant laying criminal charges.

Where “somebody has turned a blind eye to something or where somebody has intentionally done something unsafe, [these] are more significant than a case where, despite the best intentions, something has gone wrong.”

Rick Clarke, president of the Nova Scotia Federation of Labour (NSFL) in Halifax, says more education is needed for police, Crown prosecutors and provincial inspectors to ensure that C-45 charges becomes more regularly part of their considerations. “They’re not trained to embrace Bill C-45, at least in Nova Scotia,” Clarke suggests.

MUFFLED VOICE

Some contend that the recent criminal charges – springing from response, not prevention – are encouraging, but insufficient to avoid similar deaths. “I’m glad to see the prosecutor valuing the lives of these migrant workers,” Chris Ramsaroop, a spokesperson for Justice for Migrant Workers in Toronto, said in a statement last fall.

Still, more changes are necessary to make workplace protections real, namely by giving migrant workers immigration status on landing.

The vulnerability of workers is noted in the recent report of Ontario’s Expert Advisory Panel on Occupational Health and Safety, established, in part, because of the Christmas Eve deaths. “Worker vulnerability arises for various reasons: not knowing one’s rights under the [OH&S Act], such as the right to refuse unsafe work; having no work experience or training that is job or hazard-specific; and being unable to exercise rights or raise health and safety concerns for fear of losing one’s job, or in some cases, being deported,” the panel notes.

“Tackling the issues associated with this high degree of worker vulnerability requires a multi-pronged approach,” the report notes, including active outreach efforts to vulnerable worker communities; providing information in multiple languages and through simple and low-cost mechanisms; coordinating with the Government of Canada on temporary foreign worker issues; and launching
an investigation of employment brokers who recruit undocumented workers to perform vulnerable underground jobs.

BEYOND CHARGES

An additional element of the Christmas Eve deaths is two lawsuits filed with Ontario’s Superior Court of Justice by Friedman & Associates in Toronto. One is against the constructor, the scaffold supplier, the scaffold installer, the property manager and the property owner.

In the action, Dilshod Marupov and his parents, who reside in Uzbekistan, are seeking almost $19 million in general damages, special damages, damages for future loss of income, damages for loss of competitive advantage, damages for future cost of care, exemplary and/or aggravated damages, and pecuniary and non-pecuniary damages.

“Dilshod and his co-workers were performing their duties in a safe and prudent manner, when suddenly and without warning, the scaffolding upon which they were standing snapped in two and collapsed,” the claim states.

It contends the multiple catastrophic injuries suffered by Marupov “were caused by or contributed to or arose solely as a result of the negligence, gross negligence, and/or breaches of the Occupier’s Liability Act.”

In Marupov’s claim against the MOL, it notes the ministry “is tasked with a mandate to set, communicate and enforce workplace standards,” Among other things, it states, the ministry “lifted a stop-work order at the property when it was not yet safe to proceed.” None of the claims have been proven in court.

The MOL reported that over a two-month period before the deadly collapse, provincial inspectors had visited the site nine times. Orders were issued revolving around a number of things, including use of swing stages, although not the one involved in the Christmas Eve deaths.

ALL IN

Whatever the view related to the recent charges – be they regulatory or criminal in nature – they cite different parties, perhaps echoing the oft-repeated refrain that workplace health and safety is a shared responsibility.

Conlin does not see anything novel, saying Ontario often pursues charges against both companies and individuals. “Laying of [criminal] charges against individuals in this case is a natural extension of a practice that’s been routine in oh&s prosecutions in this province for decades.”

Keith makes this point: when Bill C-45 charges are being pursued against both a company and individuals, “a representative of the organization must have committed the offence before the organization can be found guilty.”

That being the case, he suggests that Crown prosecutors will likely only lay charges against individuals “if they are looking for serious jail time.”

Conlin notes that “the prospect of incarceration or jail for an individual under the OH&S Act is extremely rare.” Any terms that have been ordered have been short and usually are the result of a willful violation, such as obstruction of justice, he says.

For individuals convicted of criminal negligence, however, “the Crown is going to be seeking a very significant jail term,” Conlin suggests. “Sentencing is all about degree of culpability and it may be that the more the actual negligence of an individual accused caused the event, the more likely it is that they are going to get a jail sentence.”

Gallivan says that a fine could be viewed as success in a C-45 prosecution, although not just any penalty. “It does have to be significant enough that even your larger employers are not going to view it as a nuisance cost.”

Conlin says, “I am going to assume that the Crown prosecutors will be seeking a fine that’s significantly higher than what a corporation would face under the OH&S Act.”

With regard to how matters will proceed, Keith says the “criminal charges are more serious so they should always go first.” Conlin would agree.

“If you’re convicted under the Criminal Code, they’re not going to proceed with the oh&s case,” he suggests. That said, if the criminal case proceeds and if it is not successful (bearing in mind that there may be different outcomes for each accused), Conlin says certain issues might be raised. “There may very well be some legal issues about the Crown’s right to proceed in terms of [Canadian Charter of Rights and Freedoms] issues and the like if there’s already been a criminal acquittal.”

NEW VIEW

There is a need for governments to fully embrace the goal of reducing workplace injuries and deaths to help them become socially unacceptable, says the NSFL’s Rick Clarke.

“We’ve all been talking about needing a culture change in occupational health and safety, and I think that’s the culture change,” Clarke says of C-45 charges that could have serious consequences, including jail time. “I think it would only take a couple cases, if that,” he says. “Jail time can’t be written off as a cost of doing business,” Clarke adds.

Dave Killham, executive director of the Workers Health & Safety Centre in Toronto, said in a Day of Mourning address last April that “properly enforced, this legislation could become an important deterrent to those who would ignore worker health and safety.”

Gallivan says that if oh&s legislation is tough and people take it seriously, the need for any type of charges should be reduced. “C-45 prosecutions should be the exception, not the norm. And that, in and of itself, will show that the occupational health and safety legislation or regime is working.”

Angela Stelmakowich is editor of OHS CANADA.

Sidebars:

HAMMER DOWN

The amendments to the Criminal Code of Canada, which took effect in 2004, outlined a new duty. “Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”

Charges are possible if there is a failure to discharge that duty in a way that shows wanton or reckless disregard for the safety of others.

The first successful conviction involving C-45 charges occurred in Quebec. On March 17, 2008, a provincial court ordered Transpavé Inc. to pay a $100,000 fine and a $10,000 surcharge after it pleaded guilty to a charge of criminal negligence causing death.

Steve L’Ecuyer, 23, sustained fatal injuries on October 11, 2005 when he was struck by a lever arm while trying to clear a pile-up of concrete blocks on a palletizer. Among other findings, investigators with the Commission de la santé et du la sécurité du travail in Montreal determined that the light curtain system for the palletizer was functional, but had been neutralized.

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STEADYING RESPONSE

If there is a way to identify some positive in the wake of the deadly scaffold collapse, it may be the potential for systemic change.

The incident provided one of the cues for a comprehensive review of Ontario’s occupational health and safety prevention and enforcement system.

A 10-member expert panel headed by Tony Dean, a professor in the School of Public Policy and Governance at the University of Toronto and a past deputy labour minister, was charged with exploring, among other issues, the impact of the underground economy on health and safety practices, and how existing legislation serves worker safety.

This past December, the report containing 46 recommendations was released publicly. Perhaps the most unifying of suggestions is the call for a new prevention body and a chief prevention officer to oversee coordination and integration of Ontario’s injury prevention priorities and its enforcement system, suggestions that the Ministry of Labour (MOL) has already begun to implement.

Other key recommendations include better methods of gathering and sharing information; providing recognition and incentives for high-performing employers and sharing best practices; increasing
the involvement of workplace parties in making decisions about oh&s system priorities; and better approaches to reaching and protecting the most vulnerable workers in the economy.

On the last point, the report notes protection can be enhanced through mandatory training, greater availability of multilingual oh&s resource materials, and a new committee to advise Ontario’s labour minister on issues related to vulnerable workers.

With its release, at least as it stands, the report has attracted solid support.

Patrick Dillon, business manager of the Provincial Building and Construction Trades Council of Ontario in Toronto, says employers and the labour community should embrace the report. “Safety is not only morally right, it adds to the bottom line of businesses by preventing injuries, illnesses and fatalities,” Dillon says in a statement.

It is “deeply regrettable” that it took the deaths of four young men to trigger the review, Len Elliott, an MOL inspector and an activist with the Toronto-based Ontario Public Service Employees Union, says in a union statement. “We will be watching very closely to ensure that all the recommendations are implemented to the fullest in order that Ontario becomes a safer place for working people,” Elliott says.

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NO FALLING DOWN

Despite repetitive messaging, falls from height continue to be a challenge. Recently, a number of jurisdictions have taken steps to address this persistent hazard:

• A six-week safety blitz of Alberta construction sites last fall resulted in almost 300 inspections involving 146 commercial construction employers. Inspectors issued 214 orders, including 57 for fall hazards and 49 for a lack of proper fall protection safeguards, notes Alberta Employment and Immigration (AEI) in Edmonton. Thirty-nine of the directives issued were stop-work orders. “To say I’m disappointed with these results is an understatement,” labour minister Thomas Lukaszuk said at the time.

• The Workers Compensation Board of Manitoba has made its Construction Health and Safety Incentive Program permanent. The program, launched as a pilot in 2007, allows for a reduction in assessment rates for a firm that earns a certificate of recognition (COR). Among other things, this requires undergoing training and passing an independent safety audit. The lost-time injury rate for the construction sector dropped from 8.8 to 6.9 per 100 full-time equivalent workers between 2007 and 2009.

• As of January, New Brunswick has new fall protections under its General Regulation. Promoting prevention rather than fall arrest and response, the new rules seek to reduce the human and financial costs of falls from heights. These account for as much as $5 million in workers’ compensation costs every year, reports WorkSafeNB in Saint John.

• In December, the Occupational Safety and Health Administration (OSHA) in Washington, D.C. announced it had withdrawn a 1995 directive, originally meant as a temporary policy, that allowed employers engaged in certain residential construction activities to use alternative methods to stated fall protection. Of the approximately 40 workers who die each year in the United States as a result of falls from residential roofs, one-third are Latino workers who often lack sufficient access to safety information and protections, OSHA reports. Companies have up to six months to comply.