June 12, 2011by Israel Foulon LLP
In September 2010, a Quebec Court found Mr. Pasquale Scrocca, a landscape contractor, guilty of criminal negligence causing death in accordance with amendments to the Criminal Code of Canada (the “Criminal Code”), brought under Bill C-45. Mr. Scrocca was operating a backhoe on the grounds of a commercial building site when the brakes on the vehicle failed and struck and killed an employee.
Evidence presented at the hearing confirmed that the backhoe was 30 years’ old, it was poorly maintained and had faulty brakes. Mr. Scrocca performed service and minor maintenance on the vehicle himself and denied any knowledge of the brake system requiring repair. The brakes had not been inspected by anyone other than Mr. Scrocca in at least five years.
The Court found that in not being more diligent to ensure that the backhoe was mechanically sound, Mr. Scrocca neglected to maintain a standard of care that is expected of a prudent business owner. Mr. Scrocca was found guilty of criminal negligence under section 219 of the Criminal Code for failing to carry out this duty, which demonstrated a wanton or reckless disregard for the lives or safety of other persons.
As the person responsible for directing the work of the employee involved in the fatal incident, Mr. Scrocca was also found guilty of failing to perform his legal duty to take reasonable steps to prevent bodily harm to a person arising from work being performed, pursuant to section 217.1 of the Criminal Code.
Mr. Scrocca received a conditional sentence of two years imprisonment less a day, to be served in the community.
Bill C-45 introduced new changes to the Criminal Code effective March 31, 2004. The legislation imposes a legal duty on all businesses and persons responsible for directing the work of others (including frontline supervisors) to ensure workplace safety and it imposes more serious penalties for workplace incidents that result in injuries or the death of a worker. A finding of criminal negligence causing death is an indictable offence, carrying a maximum punishment of imprisonment for life. There is no limitation placed on the fines that may be imposed against a corporation.
Bill C-45 does not replace the requirements of an employer to adhere to the Occupational Health and Safety Act. In the event of a serious workplace accident, charges may be laid under the Criminal Code and the Occupational Health and Safety Act.
NEW WSIB WORK RE-INTEGRATION PROGRAM
WSIB has implemented operational changes in an attempt to improve the success rate of returning injured workers to employment. The most notable changes include the point of contact with WSIB personnel and the penalties that may be imposed on an employer for not co-operating with the work re-integration program.
Key Principles of the new program:
Maintaining the employment relationship between the worker and original employer where possible;
Reintegrating workers into decent, safe and sustainable work;
Including meaningful input from the worker to ensure their commitment and active participation;
Ensuring that workers are fairly compensated for wage loss by recognizing the difference between pre-injury earnings and post-injury earning ability.
WSIB has replaced Labour Market Re-entry Case Managers with WSIB staff to manage injured workers’ return to employment. Expedited case review meetings will be held with the injured worker to address work transition issues, including non-cooperation.
The Employer will be expected to actively participate in the creation of the injured worker’s Work Transition Plan. The Work Transition Plan outlines the assistance and services a worker requires to return to work with the injury employer in suitable and sustainable work. WSIB will arrange training on-the-job with the pre-injury employee for suitable employment options.
RE-EMPLOYMENT OBLIGATIONS (NON-CONSTRUCTION EMPLOYERS)
Employers have re-employment obligations to injured workers if:
the employer regularly employers 20 or more workers;
the worker was employed with the injury employer at least one year prior to the date of injury; and
the worker was unable to work as a result of work-related injury/disease.
When the worker is able to perform the essential duties of his/her pre-injury position, the employer is required to:
offer the worker his/her pre-injury position; or
offer work, which is comparable in nature and pay to his/her pre-injury position.
When the worker is able to perform alternate suitable work, but not the essential duties of his/her pre-injury position, the employer must offer the worker the first opportunity to accept suitable alternate employment that is available.
Re-employment obligations are owed to all workers impacted by a work-related injury/disease, including workers who:
are absent from work;
work modified hours; and/or
require modified duties, which normally pay less than his/her pre-injury position (even if the employer continues to pay the pre-injury wages)
Duration of Re-employment Obligations
The re-employment obligation (non-construction employers) continues until the earliest of:
2 years from the date of injury;
1 year after the worker is medically able to perform the essential duties of his/her pre-injury position;
the date the worker reaches age 65; or
the worker voluntarily resigns from his/her employment (if no appearance of pressure to resign).
If employment is terminated by the employer within the first six months of the re-employment obligation, WSIB will presume the employer has not complied with its re-employment obligation. The employer can rebut that presumption by demonstrating that the termination of employment was not caused in any part by:
the work related injury/disease;
treatment for the work related injury/disease; or
the claim for benefits.
Non-co-operation penalties will be applied when WSIB is convinced on a balance of probabilities that the worker/employer:
had knowledge of his/her obligation in the work reintegration process;
had the capability to carry it out; and
did not carry it out.
A WSIB written notice of non-cooperation is effective 7 days business days following the date of the notice.
WSIB reduces the worker’s wage loss benefit by 50% due to non-cooperation from the effective date of the written notice until:
the expiry of 14 calendar days; or
the date the worker starts to co-operate again, whichever is earlier.
WSIB suspends 100% of the worker’s wage loss benefit after 14 days have passed from the effective date of written notice until the date the worker resumes co-operation.
WSIB levies a penalty for non-cooperation amounting to 50% of the cost of the wage loss benefit payable to the worker from the date the written notice is effective until:
the expiry of 14 calendar days; or
the worker starts to co-operate again, whichever is earlier.
If the employer’s non-cooperation continues beyond the 14th calendar date following the effective written notice date, WSIB levies a penalty of 100% of the cost of the wage loss benefit payable to the worker plus 100% the costs associated with providing work transition services. The penalty is cumulative and ends on the earlier of:
1 day after the date the employer resumes co-operation (WSIB must be satisfied with co-operation);
The date on which no further wage loss benefits are payable and no services are being provided; or
12 months following the date the written notice comes into effect.
RE-EMPLOYMENT OBLIGATION PENALTY
The penalty for an employer’s breach of its re-employment obligations is based on the worker’s net average earnings in the year preceding the injury (no ceiling on the amount). The penalty is imposed 7 business days following the date of the written notice prepared by WSIB. The penalty may be reduced by the following amount if the employer offers and maintains employment for the remainder of the re-employment obligation period:
50% if the employer offers suitable work at no wage loss; or
25% if the employer offers suitable work at a wage loss.
If the employer concurrently breaches its co-operation obligations and re-employment obligations, only one penalty will be imposed. WSIB will select the more appropriate penalty in the circumstances.