Penalties when workers die on the job don't go far enough, say labour groups, families

Nearly every day in Canada, a family gets a call that shakes its foundations to the core: a father, a mother, a son or daughter has been killed on the job.

And many of those families say the grief continues when they realize the penalties employers face do not match the enormity of their loss.

A CBC News investigation has found only a handful of people have been jailed across Canada for violating workplace safety laws in connection with the death of a worker. Five employers have served time behind bars in fatality-related incidents with terms ranging from 15 to 120 days.

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CBC News requested records for convictions in connection with a workplace fatality from each province and territory. While the timeframes for the provided records varied from one region to another,more than 250 cases going as far back as 2007 were gathered.

Including victim surcharges and other amounts, the median fine for fatality-related cases levied across the country as a whole was $97,500.

"The fines need to be greater, they need to be a significant deterrent, but we also need to pursue these cases through the criminal justice system," said Irene Lanzinger, president of the B.C. Federation of Labour.

"We have long said that if you kill a worker, you should go to jail."

While the underlying circumstances behind each workplace death can be complex, CBC found numerous cases across the country of major tragedies that drew fines family members considered outrageous and insignificant given the gravity of the situations.

• Kelsey-Anne Kristian, 22, died on her second day of work in a B.C. quarry in 2007. She was only given an oral review about air brakes before being asked to park a 30-tonne truck. She was crushed to death after the truck slid off a slope. Stave Lake Quarries Inc. was charged with criminal negligence causing death and fined $115,000 in Provincial Court of British Columbia.
• Patrick Desjardins, 17, was using a buffer purchased at a garage sale in 2011 to clean the floor at a Walmart in Grand Falls, N.B., when he was electrocuted.The company pleaded guilty to workplace health and safety violations in New Brunswick Provincial Court for failing to ensure the polisher was inspected, failure to ensure the equipment was suitable and well-maintained and failure to take reasonable precautions to ensure the health and safety of its employee. It was fined $120,000.

"Walmart can earn $120,000 in 15 seconds," said Fabien Desjardins, Patrick's father. It's "not enough, but what is enough? It's trying to put a price tag on my son and you can't do it. As far as I'm concerned, if these workplaces get caught those fines should be increased, big time."

For other families, fines don't go far enough.

"I would have loved to see someone go to jail, even if it was just for a year," said Tara Kristian, Kelsey-Ann's mother. "I would have loved to see someone pay."

When it comes to fines levied against employers in connection with fatalities, the sample of cases reviewed showed amounts vary widely by province.

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In British Columbia, the median total penalty was $26,563. In Alberta, the figure was $275,000, the highest in the country according to the prosecution records provided by each province.

Statistics from the Association of Workers Compensation Boards of Canada showbetween 2010 and 2015, there were 468 acute workplace fatalities in Alberta. Over that same period, there were30 convictions under the province's Occupational Health and Safety act for fatality-related incidents, according to Alberta Labour records.

Quebec was the only province that couldn'tsupply statistics on penalties in connection with workplace fatalities, but its legislation sets out the lowest maximum penalties in the country for first-time offenders $3,310 and $66,183 for a first offence for individuals and companies respectively.

It is also the only province that doesn'tallow for jail sentences under provincial occupational safety law.

Maximumpenalties rarely levied

Many provinces have taken steps to increase the maximum allowable fines for occupational penalties over the years in some jurisdictions to more than $1 million per charge but they are rarely levied.

Katherine Lippel, the Canada Research Chair on occupational health and safety law based out of the University of Ottawa, says the median fines actually imposedseem low.

"What looks like should happen on paper, if you look at the legislation, is not exactly what is happening in practice," she said.

"If a huge company is getting a $100,000 fine, it's just the cost of doing business, and I can completely share the feelings of the family members who are outraged that there is no justice being done in the sense that the company is not being hurt the way their son of their daughter or their father has been hurt."

Regulators respond

WorkSafeBC declined an interview about why the province's median fines are lowest in the country.

However, a spokeswoman said in a written statement the unique way fines are imposed in B.C. could explain the comparably lower fines.

In British Columbia, nearly all serious penalties are imposed through an administrative process rather than through the courts, as is more common in other provinces.

"Differences may arise because administrative penalties are based on an employer's payroll. Small employers have smaller payrolls and, as such, would be subject to relatively smaller penalties than large employers with larger payrolls," said WorkSafeBC spokeswoman Erica Simpson.

In New Brunswick, WorkSafeNB says the risk of bankrupting the sole employer in a region could be a factor influencing sentencing.

"In many instances a court would have before them the one major employer in a small geographic area," said Michael McGovern, WorkSafeNB's general counsel.

"No court has ever said that they want to avoid a crippling fine for such an employer but it seems reasonable to me that they would take that into account."

Jail time a rare occurrence

While a jail sentence is an option in all jurisdictions except Quebec, only four provinces have jailed an employer as a result of a violation of a workplace safety law. They are Ontario, British Columbia, Nova Scotia and Alberta.

All but one a case in Edmonton earlier this month have resulted in a jail term of 60 days or less.

In a very limited number of serious workplace incidents, the courts have handed down prison sentences following a conviction under the Criminal Code. However, CBC News could not identify a single example where an individual served time in prison for what most experts would classify as an occupational-related incident.

In the Metron Construction case in 2009 that left four men dead after a scaffolding collapse in Toronto, a manager was sentenced to 3 years in prison. However, he was released on bail pending an appeal on the same day he was sentenced. The appeal is to be heard on Dec. 13.

The United Steelworkers have consistently been among the most vocal groups in Canada on the issue of leveraging the Criminal Code to penalize negligent employers. They have a running campaigned called "Stop The Killing, Enforce The Law."

"I don't want to see a bunch of bosses in jail," said Steelworkers director Steve Hunt. "In fact, if we saw one or two [under the Criminal Code] I think that would be the paradigm shift that we see in Canada that would really bring home to the fact that bosses have a responsibility to their workers."

'A complex conversion of events'

As part of a review of Manitoba's Workplace Safety and Health Act, the Manitoba Employers Council submitted recommendations this past year asking for better education for employers.

"I think that prosecuting employers is going to be a game of diminishing returns," said William Gardner, an occupational health and safety lawyer and chair of the employer group.

"If something happens it's usually because of a complex conversion of events which are a little harder to anticipate, and so post-accident a program that would be designed to rectify the situation and to find the causes and to eliminate them in the future I think is probably a better way to go."

Gardner says employers often grow frustrated by seemingly "arbitrary" or "frivolous" improvement orders that distract from more important safety issues on the worksite and they want to see clearer enforcement guidelines for occupational health and safety officers.

Exposing holes

University of Ottawa criminologist Steve Bittle says changes in 2004 to the Criminal Code known as the "Westray Bill" following a 1992mine explosion in Nova Scotia that killed 26 workerswere designed to enhance Criminal Code enforcement against companies and their representatives. But he says theyhave also in some ways exposed holes in provincial occupational health and safety regimes.

"[The bill] was never meant to be revolutionary in any sense, but even by conservative estimates of what might happen after the introduction of this law I don't even think it's met those standards," he said.

"And in the process I do believe that it has exposed the kind of woeful state in the health and safety regulation overall."

Feds providing Westrayenforcement tools

In anemail to CBCNews, the federal department of Employment, Workforce Development and Labour said efforts are underway to ensure that regulators and law enforcement have a clear understanding of the Westray provision of the Criminal Code while supplying training materials and technology solutions.

"Through Budget 2017 we invested $13 million over fiveyears starting in 2017-18 and $2.5 million ongoing to strengthen our compliance and enforcement regime.We are also working with the Department of Justice, and Provinces and Territories to help ensure that the possibility of a charge for criminal negligence is not overlooked," said Matt Pascuzzo, press secretary for the minister`s office.

Note on methodology:

• For the purposes of this story, the fine is defined as the sum total of all court imposed finesin a single case, plus victim surcharges and any required payments.
• CBC News requested records on workplace safety-related convictions (administrative penalties in B.C. in nearly all cases) in cases involving fatalities from each jurisdiction in the country. The timeframe covered by the records in each jurisdiction varied based on the availability of the records. Prince Edward Island, Nunavut and the Northwest Territories did not have any records of convictions related to a workplace fatality to provide. Quebec told CBC News it could not produce the requested records filtered for fatality-related convictions because of limitations of its records management system.
• This analysis represents a snapshot in time based on a sample of available records for each jurisdiction. As a result, some recent or past convictions may not have been included in the analysis.

With files from Katie Nicholson, Joanne Levasseur, Vera-Lynn Kubinec.