A corporation is considered a legal person. Like a biological person, it can be guilty of a crime if the prosecutor shows that an individual within the corporation committed a crime. Prosecutors must then persuade the judge or jury to hold the corporation responsible for that individual’s offence. This concept is called attribution of liability and it’s at the centre of Bill C-45. A corporation could be held responsible for an individual’s criminal negligence before C-45 took effect. But under the old law, the prosecutor had to prove that the individual who committed negligence was the corporation’s “directing mind.” Corporations were thus accountable for the actions of only a small circle of individuals within the organization. C-45 loosens up the attribution rules and makes corporations liable for a much wider range of individuals. The Insider will use a recent case from Ontario to demonstrate the new attribution rules and their potential impact. The case involves an incident that took place before C-45 went into effect. So the court had to apply the old law. First we show how the case was actually decided and then how it might have been decided if C-45 had applied.

Like most companies, you may ban workers from wearing rings, necklaces, earrings and other jewellery at work. This policy is sensible, especially for workers working near machinery and equipment. After all, ensnarement of a dangling necklace or bracelet in the moving parts of a machine has cost more than one worker a finger, hand, limb or life. Unfortunately, some workers might regard the wearing of jewellery as a harmless form of self-expression and ignore the policy. Violation of a no-jewellery policy can be grounds for suspension or even termination. But, as is always the case with discipline, the punishment must fit the offence and be meted out in a way that respects the worker’s rights. Here are two cases in which a labour relations board had to evaluate the appropriateness of discipline under a no-jewellery policy. Although both are from Ontario, the same reasoning would apply in other provinces.

Provincial, territorial and even local laws banning smoking in all indoor public places—including workplaces—are all the rage now. These laws typically require employers to either ban smoking entirely or limit it to designated areas of the workplace. Employers must also ensure that all workers and visitors comply with smoking restrictions. But because these laws are so new, employers have had little guidance on what exactly they’re expected to do to enforce them. For example, if an inspector catches several workers smoking and charges their employer with failing to enforce a smoking ban in its workplace, how does the employer prove that it exercised due diligence? Here are two recent cases that offer some insight on that question. The cases involve very different workplaces. But in each case, the employer was able to prove that it exercised due diligence in enforcing a smoking ban.

You can’t discipline a worker for refusing dangerous work, complaining about a safety problem, joining a JHSC or exercising any other safety right granted by the OHS law. But workers who exercise safety rights might also commit infractions that do merit discipline. When a worker who both exercised a safety right and committed an unrelated infraction gets disciplined, it raises a tricky question: Was the worker disciplined because he exercised the safety right or because he committed the unrelated infraction? In other words, what makes discipline retaliatory? In answering that question, courts and labour boards typically look at whether there’s a “nexus”—that is, connection—between the protected act and the discipline, considering factors such as the timing of the two events. Here are two cases that deal with this issue.

Historically, when courts sentenced companies for OHS violations, they typically ordered them to pay fines to the government. But it’s become increasingly common for courts to impose “creative sentences” for environmental offences—and the trend is catching on for OHS offences as well. The underlying principle of creative sentencing is the recognition that the offence is connected to a larger problem affecting that company and others. Creative sentences require the company to pay money or do something else to help both the company and society solve that problem. Still, creative sentences are more the exception than the rule. When is a creative sentence appropriate? In general, there must be a clear nexus between the conduct underlying the violation and the organization or cause that benefits from the sentence. In other words, the sentence should address the underlying problem to which the offence is related. For example, the court may order a convicted company (or individual) to pay a sum of money to a group, such as a university or a non-profit organization, that’s involved in work connected to the type of violation the defendant committed. Although used in all parts of Canada, creative sentences are especially popular in Alberta. Here are two cases from Alberta in which the courts were asked to impose creative sentences.

Although details vary by province, the basis of workers’ compensation is essentially the same throughout Canada: Workers give up the right to sue their employers for job-related injuries in exchange for guaranteed compensation for such injuries. But workers’ compensation only comes into play when a worker is injured in the “course of employment”—in other words, when the injury is job-related. So what if a worker is injured while driving to work? Is such an injury job-related? Here are two cases that illustrate the facts a court or tribunal will consider when answering this question.

INJURIES ARE JOB-RELATED

FACTS
A snowplow operator in Nova Scotia was called in to work early because of an unexpected April snow storm. On his way to the base, his car slid off the road due to the slippery conditions and he was injured.

DECISION
A Nova Scotia court ruled that the snowplow operator’s injuries were jobrelated.

EXPLANATION
The court noted that, in general, injuries suffered by a worker while traveling to work are not job-related because “the risks of getting to work are the general risks of life, not the risks of employment.” But this case was different because of the following facts:

• Although the snowplow operator wasn’t being paid at the time of the accident, he was called in to work outside his normal hours to respond to an emergency situation—poor road conditions caused by a sudden storm;
  
• The condition he was called in to deal with was the very cause of his injuries; and
  
• If not for the dangerous road conditions, the snowplow operator wouldn’t have been asked to come in to work before his usual start time.
  

[Puddicombe v. Workers’ Compensation Board (N.S.), 2005 NSCA 62, April 8, 2005]

INJURIES ARE NOT JOB-RELATED

FACTS
A foreman for an Ontario landscaping company was driving a co-worker to work in a company-owned truck. While stopped in traffic, the truck was rear-ended by a school van, which was in turn rear-ended by a dump truck. As a result, the foreman suffered neck and back injuries.

DECISION
An Ontario tribunal ruled that the foreman’s injuries weren’t job-related.

EXPLANATION
The tribunal explained that the general rule is that while workers are traveling to and from work, they aren’t in the course of their employment. Exceptions to the general rule have been made in unusual circumstances, the tribunal noted. But the facts of this case didn’t warrant an exception:

• The foreman was coming to work at his normal time; he wasn’t called in to address an emergency or urgent situation;
  
• The cause of the foreman’s injuries—a car accident—was unrelated to his work duties. That is, he wasn’t injured while, say, using a lawnmower;
  
• Although the truck the foreman was driving when he was injured was company-owned, it wasn’t the “principal tool of his employment”; and
  At the time of the accident, the foreman wasn’t being paid.
  

[Decision No. 297/06, [2006] O.W.S.I.A.T. 545, March 10, 2006]

There are dozens of studies that show a strong connection between worker fatigue and safety incidents. This connection is especially strong for workers who work certain schedules, such as 12-hour shifts or overnight. Obviously, you don’t want workers to get exhausted and become a safety risk. You want them to get enough sleep. You just don’t want them to catch up on their sleep in the workplace. If a worker dozes off on the job, he puts himself and his co-workers in danger. Clearly, that worker deserves some sort of discipline. But can you fire a worker for falling asleep on the job? Here are two cases that illustrate the factors courts will consider to determine when it’s okay to fire a worker for nodding off at work.

FIRING IS JUSTIFIED

FACTS
A personal care company hired several nurses to care for an autistic patient around the clock. The patient was aggressive and had hurt herself and others in the past. She also had a history of nighttime grand-mal seizures and had been known to wander off. So each nurse was required to stay awake for her entire shift. But the nurse who worked the night shift fell asleep on the job. And, apparently, that was her plan all along: the nurse had actually brought a quilt to make herself more comfortable and an alarm clock to wake her up before the next nurse arrived. Unfortunately for her, the alarm clock didn’t work and the nurse got caught by her replacement. She begged the other nurse not to tell anyone. But the company found out what she’d done and fired her.

DECISION
A BC arbitrator ruled that the nurse’s termination was justified.

EXPLANATION
The arbitrator gave three reasons for his decision:

The nurse intended to sleep on the job. The nurse didn’t doze off accidentally. She’d brought in a quilt and alarm clock, which proved that she intended to fall asleep.

The nurse tried to cover up her mistake. The nurse didn’t take responsibility for her actions or express remorse. Instead, she asked another worker to lie for her so she wouldn’t get in trouble. Her actions breached the employer’s trust and irreparably damaged the employment relationship.

The nurse jeopardized the patient’s safety. The nurse was the sole person responsible for caring for the patient during the night. By falling asleep on the job, she jeopardized the safety and well-being of the patient and others.

Pamel’s Home Society v. Hospital Employees’ Union (Nagi Grievance), [2006] B.C.C.A.A.A. No. 40, Feb. 27, 2006

FIRING IS NOT JUSTIFIED

FACTS
After a scheduled break, a part-time worker, who was working as a lead hand, hid himself in a trailer so he could rest a bit longer. He brought a can of soda and bag of potato chips to eat during his “extended break.” A little while later, his manager found him lying down with his eyes closed. The worker denied that he was sleeping, claiming that he was “just closing his eyes” and taking an extended break because he thought he was caught up with his work. The employer fired him anyway for “malingering on the job.”

DECISION
A federal arbitrator ruled that the worker’s termination wasn’t justified and cut his penalty to a three-month suspension and a demotion.

EXPLANATION
The arbitrator based his decision on the following:

The worker didn’t intend to fall asleep on the job. There was no question that the worker intended to take a longer break than the one to which he was entitled. But he had brought a snack with him to the trailer, proving that he intended to stay awake.

There was no evidence the worker had lied about whether he was asleep. There wasn’t any hard evidence to refute the worker’s claim that he was just resting his eyes. “The thrust of his offence might be better characterized as absenting himself from his workplace and engaging in an unauthorized break,” the arbitrator said.

The worker hadn’t jeopardized anyone’s safety. The arbitrator noted that, whether the worker was asleep or just resting, he’d never put anyone in jeopardy when he took his extended break.

In re: Canpar and United Steelworkers of America (Local 1976), Canadian Railway Office of Arbitration, Case No. 3385, Dec. 13, 2003

Workers’ compensation provides benefits for workers who are injured on the job. Working rotating shifts—such as working nights one week and days the next—can cause workers to develop sleep disorders or aggravate the severity of sleep disorders from which workers are already suffering. And sleep disorders, such as insomnia and shift-work maladaptation syndrome, can lead to other health problems. Are shift workers who develop sleep disorders or whose pre-existing sleep disorders are aggravated by shift work entitled to benefits under workers’ comp? Stated differently, are such disorders work-related? Here are two cases in which courts and tribunals came to different conclusions on this issue.

WORKER IS ENTITLED TO BENEFITS

FACTS
A worker alternated between two shifts every two weeks: One shift was from 7:00 a.m. to 3:30 p.m. and the other was from 5:00 p.m. to 1:30 a.m. The worker had experienced sleep problems since he was a child. But it wasn’t until he was assigned to work days only for four months that he realized that the shift work was the reason his sleep problems were getting worse. Sure enough, during the four months that he worked only days, his condition improved. But when he was reassigned to rotating shifts, his condition started deteriorating again. A specialist diagnosed the worker with narcolepsy, a severe and chronic sleep disorder that can’t be cured. The worker filed a claim for workers’ comp benefits for the seven, two-week periods during which he’d been reassigned to rotating shifts.

DECISION
The ON Workers’ Compensation Appeals Tribunal ruled that the worker was entitled to workers’ comp benefits.

EXPLANATION
The tribunal acknowledged that the worker’s narcolepsy was a pre-existing condition unrelated to his work. But medical evidence showed that rotating shift work can aggravate narcolepsy’s symptoms, which appears to be what happened to this worker. The worker’s condition improved when he was placed on regular day shifts for the first time. And it deteriorated once again when he resumed working rotating shifts. Because the nature of shift work was a “significant contributing factor to the aggravation” of the worker’s pre-existing condition, the worker was entitled to workers’ comp benefits, the tribunal concluded.

Decision No. 207/90, [1991] O.W.C.A.T.D. No. 96, Feb. 4, 1991

A company isn’t automatically liable for an OHS offence just because a workplace incident occurs. A company’s liability depends, in part, on whether the incident was foreseeable and, if so, whether the company took reasonable steps to prevent it. What makes an incident foreseeable? Courts aren’t allowed to engage in hindsight. They can only look at what the company knew or should have known about the hazard that caused the incident before the incident occurred. Here are two contrasting cases in which courts had to determine whether an incident was foreseeable.

INCIDENT WAS FORESEEABLE

FACTS

A production line at a candy factory was shut down because of a mechanical failure. As part of the shutdown, a worker was told to empty the “Accurate Feeder” of peanuts so it could be cleaned. The Feeder consisted of a hopper with an electric auger at the bottom that rotated to feed the peanuts. The worker scooped out as many peanuts as she could. Then, while the machine was still energized, she pushed the remaining peanuts toward the moving auger. Her hand got too close to the auger and the top of her index finger down to the first joint was amputated. The candy company was charged with letting a worker service a machine with moving parts that were still energized in violation of lockout regulations.

DECISION

An ON court convicted the company, ruling that the incident was foreseeable.

EXPLANATION

The court noted that the company’s due diligence defence hinged on whether the incident was foreseeable. The company claimed that it had no knowledge of the potential danger to workers cleaning the Feeder. Safety audits didn’t reveal any issues with the Feeder and there had been no prior problems with the cleaning of the Feeder. But a reasonable person would have foreseen such a danger, the court said. After all, the company was aware that the Feeder contained a moving part— the auger—that could be a danger to a worker. And because it was aware of the danger, the company could and should have taken measures to prevent it, such as asking the individuals who conducted safety audits to pay particular attention to the augers. The company could also have required a supervisor to be present when the Feeder was cleaned, the court added. But the company didn’t take either of these reasonable precautions.

Ontario (Ministry of Labour) v. Hershey Canada Inc., [2006] ONCJ 420 (CanLII), Sept. 21, 2006

INCIDENT WASN’T FORESEEABLE

FACTS

A company was constructing a pipeline. Workers were engaged in an operation called “crotching”—a method of securing the end of a pipe that’s resting on a cribbing made of timber—using a Caterpillar pipe layer boom. The boom brake had an adjusting nut used to set the boom brake to respond to the different loads the boom must hold. The nut had a nylon insert that acted as a lock on the bolt. The boom fell and hit a worker. He died instantly. The company was charged with four OHS violations, including failing to keep the equipment properly maintained.

DECISION

An AB court dismissed the charges, ruling that the incident wasn’t foreseeable.

EXPLANATION

The government argued that the adjusting nut on the boom brake had vibrated loose and caused the incident because its nylon insert was worn out and hadn’t been properly maintained. But the court noted that there was no evidence that the company should have foreseen that the adjusting nut would fail in the manner the government suggested. Nor was there evidence that the company was aware of a potential problem with the nylon insert that would cause the adjusting nut to vibrate loose. In fact, the evidence showed the opposite. Several witnesses with extensive experience in the pipeline industry, including government witnesses, testified that they’d never seen or heard of an adjusting nut vibrating loose. Thus, the incident wasn’t foreseeable and so the company wasn’t liable for not taking steps to prevent it.

R. v. Ledcor, [2005] ABPC 169 (CanLII), June 27, 2005

C-45 made it easier to sentence corporate officials and other individuals to jail for a safety violation. But don’t forget: Safety offences can result in jail even without C-45. When a defendant is convicted of an OHS offence, the sentencing judge has to decide what kind of penalty to impose. In principle, the sentence should be one that will impress upon the defendant—and others who might commit similar offences—that the courts and society expect workplace conduct to be safe and compliant with all OHS laws, guidelines and orders. Companies convicted of safety offences can obviously only be sentenced to pay a fine. But individuals can be sentenced to pay fines, serve jail time or both. In most cases, judges fine individuals convicted of safety offences. And although jail sentences are rare, they do happen. When is a jail sentence appropriate for a safety offence? Here’s a look at how two courts answered this question.