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Opinion

Glimmers of Justice for Workers Killed on the Job

But criminal charges for negligent employers remain far from the norm, and more must be done.

By Tom Sandborn 21 Feb 2015 | TheTyee.ca

Tom Sandborn has covered labour and health policy news for the Tyee for more than a decade. His commentary pieces on these beats run here twice a month. Find his Tyee articles here. He welcomes feedback and topic suggestions at tos65@telus.net.

When Sam Fitzpatrick, a young rock scaler, died in 2009 on a worksite north of Powell River, his father blamed bad decisions by the employer, a joint venture group led by U.S. contractor Kiewit Sons.

For over half a decade, Brian Fitzpatrick has campaigned for someone to be held accountable after a boulder rolled down a steep slope from where heavy equipment was being unsafely operated and crushed Sam, killing him and leaving his brother Arlen, who was working near Sam that day, with the traumatic memories of witnessing it. A WorkSafeBC agent later found the incident reflected "reckless and grossly negligent" decision-making by company management.

Now, B.C. RCMP have responded to the father's complaints and opened an investigation into Sam's death that could lead to criminal charges under the so-far laxly enforced Westray Act. The law can hold employers criminally responsible for failing to ensure worker safety in cases of serious injury or death.

Meanwhile, in the wake of two lethal mill fires in 2012, the province has announced new regulations designed to improve worker safety and accident inspections in B.C. The new rules give the WorkSafeBC enforcement tools that include on-the-spot fines of up to $1,000, wider discretion to stop work deemed unsafe, and the ability to take ''more forceful action'' against egregious, willful and repeat offenders.

Taken together, the two events represent some cause for cautious optimism about whether workplace deaths and injuries will be taken more seriously in the future in this province.

Few charges laid since 2004

Nearly 1,000 workers are killed in workplace accidents or by illness caused by exposure to poisons such as asbestos every year in Canada. In 2013, B.C.'s worker safety agency reported 128 workplace fatalities and 145,126 lost time injuries.

We cannot know with certainty how many of these deaths were directly caused by management decisions because the Westray Act, which notionally allows criminal prosecution against managers and board members of negligent companies, has been grossly under-enforced, with fewer than 20 charges laid since it came into law in 2004. But given what we know about working conditions across the country, it seems unlikely that none were caused by reckless managers.

The recent changes at WorkSafeBC were prompted by the failure of the agency's regular inspections to prevent two lethal mill fires at Burns Lake and Prince George in 2012. A subsequently bungled investigation process resulted in no criminal accountability for the four deaths and many injuries inflicted by explosions at the sawdust-clogged mills. Because the agency's investigators did not conduct their preliminary inquiries into the fires according to standard police protocols, the government said it was impossible for criminal charges to be laid.

The BC Federation of Labour welcomed the changes, but insisted that they did not go far enough. The Fed continues to press for a Crown prosecutor dedicated to conducting prosecutions in cases of workplace death, a Crown charge assessment policy specific to workplace death, and education for prosecutors, police services and WorkSafeBC investigators around criminal negligence from a workplace health and safety perspective.

Concrete or gestural changes?

By and large, the justice system in Canada has shown itself either unwilling or unable to take workplace deaths seriously. Just last month, two Brampton furniture company managers were jailed after pleading guilty to safety violations following the death of a worker, but no criminal charges were laid. The penalty for the worker's death amounted to a fine and 25 day of house arrest, to be served at the managers' convenience on weekends.

A hardened cynic might suspect that any steps toward stronger law enforcement in the matter are gestural, at best. But make no mistake: both the changes at WorkSafeBC and the new criminal investigation into Sam Fitzpatrick's death represent small but real victories for those seeking justice for workplace deaths.

The victories, it should be noted, were won by tireless campaigning by trade union groups like the Steelworkers and the BC Fed, and in Sam's case the stubborn public pressure exerted by his father. There is no doubt that without Brian Fitzpatrick's dogged work, Sam's death would now be one more forgotten fatality. And without steady pressure from organized labour, even the small efforts made over the past decade toward enforcing the Westray Act would likely not have occurred.

To be sure, those troubled for years by the failure of Canadian criminal law and worker compensation boards to impose adequate sanctions on bosses who endanger workers' lives can give at most two cheers for recent progress. But it remains to be seen whether these changes mean that Canada has turned the corner on this dire matter, and we must all continue to demand tougher enforcement of the law.  [Tyee]

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