First conviction made under Bill C-45

by Ingrid Phaneuf

OTTAWA, Ont. – Weeks after a judge ordered Quebec company Transpave to pay a $110,000 fine in the first criminal conviction under Bill C-45 of a company found guilty of criminal negligence causing a worker’s death, trucking industry insiders are asking themselves just how liable they will be held for deaths incurred in the line of duty, particularly by truck drivers and owner/operators who may or may not be following instructions when they hit the road.

Given that Bill C-45 has just been successfully used for prosecution for the first time since it was passed in 2004, it’s no surprise that trucking company owners and managers are concerned.

“Now that there has been a successful prosecution in Quebec, it’s more likely that other provincial prosecuting attorneys will bring charges,” says transportation lawyer Israel Ludwig, with the firm Duboff Edwards Haight and Schachter in Winnipeg.

A Quebec court judge imposed the fine in March against the paving stone manufacturer, for the death of worker Steve L’Ecuyer, 23, killed in 2005 when he was crushed by a machine with a safety device that had been “neutralized.”

The court found that L’Ecuyer lacked the training to realize the danger he was in and that both employees and management knew the safety system wasn’t working at the time of the accident.

The moral of the story, according to Ludwig, is that: “Trucking companies have to be careful about saying or doing anything to their drivers that could get them into a dangerous situation.”

For example, managers and dispatchers should not encourage their drivers to drive beyond regulated hours, or drive if they feel the weather could be dangerous, says Ludwig, “because if someone does that and they get into an accident causing death, a Crown attorney looking to make a name for him or herself might just bring a prosecution.”

Managers should also avoid pairing drivers who are inexperienced with certain types of loads, particularly hazardous materials, says Ludwig. “Then you’ll definitely be exposing your company to prosecution,” he warns. “And not just fines either. Under the criminal code even company officers can go to jail. And a criminal code goes on your record. It’s something that will show up if you’re applying for credit, and it will prevent you from getting across the border. There are very serious ramifications for being prosecuted under this section.”

(Fines of up to $25,00 are possible against individuals, while fines of up to $500,000 can be levied against companies. Jail time can amount to as much as a life sentence).

Still, criminal code convictions aren’t easy to get, says Ludwig.

“To get a criminal conviction you have to prove guilt beyond all reasonable doubt. You have to show that the individuals got into the accident because the company showed a willful, wanton disregard. The driver, for example, would have had to have been placed in a untenable situation,” he explains.

As for liability issues when it comes to sub-contractors (owner/ operators), Ludwig believes that companies who contract out loads can’t be held responsible for the criminal acts of sub-contractors.

“In criminal law you have to show mens rhea – criminal intent – and my own feeling is that the company contracting out the work is no different from the shipper.”

But given the fuzzy boundaries of some owner/operator-trucking company relationships, there could be room for argument, admits Ludwig.

“If the owner/operators all drive trucks with the company’s logo there may well be room to argue there is a direct relationship,” he says. Instances where deductions are made from the owner/operators’ pay cheques could also create confusion as to the nature of the relationship, says Ludwig.

“That’s why it’s important to have a contract in place with the owner/operator – it protects the company and it will put the prosecutor in a position where he or she will not be able to prosecute,” he says.

As for Crown prosecutors and politicians now viewing the successful case in Quebec as an opportunity to gain popularity by picking on big, bad trucking companies, Ludwig thinks it’s unlikely.

“A politician can’t just go and tell a Crown prosecutor to make a case against a company – there has to already be a case to be prosecuted,” says Ludwig.

“But that doesn’t mean that a Crown attorney who wants to make a name for him or herself couldn’t take on a case and get political backing if they do.”

Bill C-45 is informally known as the ‘Westray Bill,’ because it was the federal government’s legislative response to the Westray Mine disaster in 1992, when 26 miners lost their lives in a Nova Scotia coal mine explosion. Occupational health and safety laws did not prevent the tragedy, or punish the guilty. The public inquiry that followed the disaster laid blame for the disaster squarely at the feet of the mine’s owners and managers. Despite this, no-one ever paid any fines or served any jail time.

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