New law makes fleet managers, dispatchers more accountable
February 1, 2005
OTTAWA, Ont. - Trucking company administrators may not know it yet, but a new corporate liability law, passed earlier this year, could severely punish a fleet manager and/or dispatcher for putting a d...
OTTAWA, Ont. – Trucking company administrators may not know it yet, but a new corporate liability law, passed earlier this year, could severely punish a fleet manager and/or dispatcher for putting a driver in a dangerous situation.
Bill C-45, passed last year as a direct result of an inquiry into Nova Scotia’s 1992 Westray Mine Disaster, which claimed the lives of 26 people, increases company accountability for the safety of its employees.
That means a fleet manager or dispatcher who knowingly puts a driver in a dangerous situation (for instance by assigning a load while the driver is out of allowable driving hours) can now be punished severely under the law.
“This legislation is important because, in the aftermath of Westray, it underscores the relationship between corporate liability and public safety, and it says to employers that those who fail to provide safe workplaces may be dealt with severely through the criminal law,” said Justice Minister Irwin Cotler when the law was tabled. “We’ve also modernized the law on criminal liability to ensure it reflects the current structures of today’s organizations.”
Thanks to Bill C-45, any person who directs another person can be held accountable in the event of an accident. Fines of up to $25,000 are possible against individuals, and corporations are subject to possible fines of up to $500,000. Jail time including a maximum of a life sentence can also be issued to individuals if their negligence causes a fatality.
“My main advice to anyone entering this industry is to follow the rules,” said BLM Transportation Group founder Jim McConnell. “Make sure your drivers are safe, you are following the code laid down by the Department of Transportation and that you try to do everything properly.”
Carriers should be aware of the implications of the new law, said Kim Royal, executive director of the Alberta Motor Transport Association (AMTA).
“There’s going to be a high-profile case of some incident and I hope it’s not in the transportation industry,” he cautioned. “I don’t perceive it as being something that will come up within the next six months but there will be a test case coming up within the next year or two.”
A couple of cases may have to play out in court before the full implications of Bill C-45 are known, he said.
So far, however, it appears most carriers are not overly concerned about the new law.
According to Graham Cooper, senior vice-president of the Canadian Trucking Alliance (CTA), association members haven’t yet raised concerns about the law. That’s probably because already existing Labour Code rules include severe penalties for companies that don’t provide a safe workplace for employees.
“This may add a new wrinkle to it,” he admitted. “But it would have to be an extreme case before it would come into play.”
Truck News contacted Canada’s Justice Department with a couple of examples that could occur within the trucking industry to see if Bill C-45 would come into play.
Example 1: A fleet manager is aware one of his drivers routinely fudges his logbooks to drive beyond the legal limit. He turns a blind eye to the violations until the driver is involved in a serious accident while driving beyond the daily maximum under HOS regulations.
Example 2: A dispatcher assigns a load to a driver that a) doesn’t have enough hours remaining to deliver; or b) protests against delivering due to extremely bad weather. The driver is pressured into delivering the load and a serious accident results.
“Although both situations described may result in a charge and a conviction, it must be emphasized that each case will turn on the facts proven in court,” said Greg Yost, with the Criminal Law Policy Section of Justice Canada. “The probable charge would be criminal negligence causing death (maximum life) or causing bodily injury (maximum 10 years). The Crown must prove:
* The person had authority or undertook to direct how work was performed;
* The person omitted to take reasonable steps to protect a worker or other person;
* The omission was more than just an innocent mistake or simple carelessness but showed “wanton or reckless disregard” for safety, and;
* A worker or other person suffered death or serious injury or illness as a result of the person’s negligence.
Added Yost: “For both the manager and the dispatcher, the analysis would be the same. Did they have authority to direct the way the work is performed? Did they take reasonable steps having regard to the potential harm? Was their act or omission so serious that it amounted to ‘wanton’ disregard for the safety of the worker and the public? Did the accident occur because of their negligence? Did the accident cause injury or death?”
The courts understand that accidents do happen, and would not charge an employer unless there was a flagrant disregard for the driver’s safety, Yost said.
“However, the greater the inherent risk, the more vigilance courts expect and the more likely it is that they will find a wanton disregard for safety,” he added. “It is a question of weighing the risk and there are few things as dangerous as a semi-trailer barreling down the road with a tired driver.”
The bottom line is that it’s more important than ever for carriers to ensure their drivers are not being put in harm’s way. By complying with existing regulations, fleet managers can minimize their risk of having to worry about colossal fines and possible jail time as a result of Bill C-45.
They must also ensure the entire chain of command is in compliance and must be vigilant about reprimanding those who violate the regulations – whether they are drivers or dispatchers.
“A good fleet manager and a company with a good dispatch process keeps tabs on drivers’ hours of service on a daily basis and should never be in a predicament where they’re dispatching a load without adequate hours left,” said Grant Aune of B.C.-based Advantage Fleet Services.