A recent Ontario case serves as a chilling reminder that negligence on the job that results in death or serious harm can lead to criminal charges against for managers and supervisors. Corporations and their directors and officers may also be held criminally or civilly liable for the actions of their employees and are at risk of severe penalties.
Until recently, rarely were Canadian corporations or their employees charged criminally for harm resulting from negligent acts in the course of doing business. And in the few cases where someone was charged, it was almost always someone in a very senior role with the corporation, such as a director or officer with direct decision making authority over creating the corporate policy that allowed for the negligent act.
In R. v. Kazenelson  ONSC 3639, the Ontario Superior Court affirmed that much less senior individual employees can be found criminally responsible under Section 22.1 of the Criminal Code, which allows for charging senior officers responsible for the relevant area of enforcing – not just creating – policy, if such employees depart markedly from the standard of care that could reasonably be expected in the circumstances. Under the Code, “senior officer” is defined broadly to encompass not just senior management and directors and officers, but anyone responsible for managing an important aspect of an organization’s activities.
Mr. Kazenelson was the project manager for Metron Construction Incorporated on a balcony repair project in Toronto. The project was behind and Metron was working hard to complete the job, and unfortunately, on Christmas Eve, four workers were killed in a fall. The nature of the work required the employees to use a swing stage (like those used by window washers) to descend to the ground floor, however the swing stage was only equipped with 2 lifelines. When seven employees, including Mr. Kazenelson, attempted to descend together, the stage collapsed. Mr. Kazenelson was found criminally negligent for failing to take reasonable steps to prevent bodily harm to the workers in relation to the work over which he had authority. He was sentenced to 3 ½ years in prison.
The Kazenelson case confirms that Section 22.1 of the Code presents considerable additional risk to managers and supervisors everywhere, and its application further exposes corporations and their directors and officers to considerable penalties and civil liability for the actions of its management employees even if the corporate policy itself meets the standard of care. In the above instance, the corporation pleaded guilty to criminal negligence causing death and was fined $750,000.
Directors, officers, managers, and supervisors, especially in high risk operational areas such as environmental compliance, safety, and security, should take extra care to ensure that corporate policies are up-to-date and appropriate, and where they are involved in supervising work under the policies, to ensure that policies are strictly complied with. The increased risk of a criminal conviction now makes this exponentially more imperative. It is essential to make sure that you develop and implement written policies that are understood and enforced, and anyone responsible for enforcing corporate policy better be sure that the policy meets the required standard of care and is enforced, or they risk not just their jobs, but their freedom.