Law Times

LAW TIMES / JUNE 23, 2008 McGuinty's government as it tries to reconcile economic reality with its ideological in- difference to business would be grist for Monty Python if it weren't so serious. How else do you explain the passage of an Endan- gered Species Act that has en- vironmentalists salivating over their brand new power to stop forestry activity even as north- ern Ontario's economy reels from mill closings? Or the Liberal endorsement of coming changes to the Min- ing Act that will, in essence, give aboriginal groups veto power over mining development on Crown land. Or the giving of financial handouts to dozens of companies as part of an old-fashioned "pick- ing winners" strategy, as if govern- ment was ever any good at mak- ing entrepreneurial decisions. Or, strangest of all, the sign- ing of an Ontario-Quebec agree- ment by premiers McGuinty and Jean Charest that together the pair will tackle "climate change" by bringing in a version of car- bon taxes known as a "cap and trade emissions system." Even assuming "climate atching the twists and turns of Premier Dalton change" means human-originat- ed warming of the climate — a somewhat dubious assumption considering all the prior warming and cooling eras that predate the industrial age — the McGuinty- Charest solution is guaranteed to take another huge bite out of the Ontario economy. probably the purest and most ef- fective form of carbon tax if the aim is to reduce emissions, will cost the Ontario economy an estimated $6 billion this year. (In terms of carbon tax, 10 cents a litre increase in gasoline is apparently equal to $50-a-carbon-ton tax.) How much will "cap and After all, higher fuel prices, trade" cost the economy? No one knows, but it will be heavy. Mind you, high oil prices, like the high dollar and a slow American economy, are forces beyond Liberal control. But what the Grits really have to do is avoid making matters worse by assuming the private sector can take continued financial and regulatory battering at the hands of the province and not suffer negative consequences. Today, there is little sense that Ontario is "open for business," as the phrase once went. The Liberals look skeptically upon business, fearing it will veer away from the straight and narrow if they do not micro-inspect, regu- late, tax, and control. (Think of the set of petty rules recently im- posed upon tobacco retailers). Coming to power in 2003, the Liberals raised corporate taxes to the highest level in North America without blink- ing an eye, as though such ac- tions would have no effect upon decisions made by business. Most of the net growth in Ontario employment in the Lib- eral years has been in the public sector, which, when combined with wage increases above infla- It's an attitude thing W Queen's Park Inside By Derek Nelson tion and no discernible increase in productivity, has meant a need to keep corporate and per- sonal taxes high to pay for what McGuinty likes to call his "valu- able" public services. The premier proudly roll- calls the more than 100,000 people newly hired by the state, from nurses to teachers to Crown attorneys. He says it is to "protect public COMMENT PAGE 7 gence causing death" under the Criminal Code, was sen- tenced on March 17 to pay a fine of $110,000 as a result of a workplace accident resulting in the death of an employee. On Dec. 7, Trans- Their lives in your hands T BY PRADEEP CHAND For Law Times ranspave Inc., the first company charged with "criminal negli- What is important to note is that the word "everyone" includes individuals, organi- zations, and corporations. Should a workplace acci- dent occur, the amendments made by Bill C-45 have made it possible for a corporation (or its supervisors or repre- Speaker's services that the people of On- tario are entitled to count upon every single day." And there's the rub, the Achil- les Heel of Liberal thinking. Government is necessary, but just hiring more public servants doesn't mean a corresponding increase in accomplishments or productivity by those public servants. Take justice, for instance. Could Robert Baltovich count on "public services" to prevent his wrongful convic- tion? We'll never know, because Attorney General Chris Bentley has refused an inquiry. pave — a concrete block manufacturer northwest of Montreal — pleaded guilty in Saint-Jérôme, Que. to the charge which arose from a 2005 workplace death taking place at the company. A 23-year-old worker, Steve L'Écuyer, was killed while trying to clear a jam in a machine. Investigations by Quebec's Health and Safety Board and provincial police found the company was negli- gent when it allowed L'Écuyer to operate the machine while its motion detector safety mechanism deactivated. This case is the first prose- cution of a corporation under the new criminal negligence provisions of the code. On March 31, 2004, as a And could those who have had a child die count on "pub- lic services" to handle such sad events fairly and reasonably? The hearing into former pediatric fo- rensic pathologist Charles Smith's career suggests otherwise. In education, student enrol- ment declines, staff hiring and costs go up, and properly mea- suring outcomes is a decidedly four-letter word. Health care is another example. Hundreds are dead in On- tario public hospitals because of C. difficile infections and the Liberal answer, after initially ex- pressing considerable reluctance to do anything, is more hospital reporting to Queen's Park. Nobody in the public sector is to blame — not systems, nor union rules, nor anything else — for poor infection control. But if someone in a private nursing home even gets sick, the government will, and has, (right- ly), come down on its owners like a ton of bricks. legislature is to hear a constant din of praise for the public sec- tor, an attributing of superior virtue to its members, as if they are more competent, more car- ing, more self-sacrificing, less greedy, less selfish and so on — making one wonder who repealed human nature for that segment of society. If the McGuinty Liberals are to successfully ride the economic whirlwind now upon us, they need to be more skeptical of the public sector and less indifferent to the needs of the private. This is an attitude thing. Listening to Liberals in the LT Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail address is jugurtha@ rogers.com. result of Bill C-45, safety at the workplace became a mat- ter for criminal enforcement. Bill C-45 amended the sentatives) to be charged with criminal negligence. In the Transpave case, the Corner Crown and the defence attor- ney made a joint submission to the court and agreed that a fine of $100,000 would be an appropriate punishment. In sentencing Transpave, the court noted that the sever- ity of the offence was high, given that a death of a person ensued. However, the court also noted that Transpave is a fam- ily corporation and it had derived no advantage from the perpetration of the offence. Furthermore, there had been no planning of any sort to commit the offence in question. Criminal Code to impose a new duty on organizations and corporations to ensure workplace health and safety. This new duty, which is contained in the criminal negligence provisions of the code under s. 217.1, requires that, "Everyone who under- takes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task." Letters Dear Editor: A Law Times article dated June 16 states that, "A confidential judicial council report obtained by Law Times, which paved the way for the disciplin- ary hearing, suggests the judicial body would not be favourable to Matlow." The suggestion that the Canadian Judicial Council has in any way predetermined this matter is misleading and shows a clear misunderstanding of the process of review of judicial conduct matters by the council. None of the judges who were members of the The court also commented that safety regulations had been in place prior to the acci- dent, noting that there was an existing health and safety committee at Transpave, as well as a code of conduct for the employees to follow. In addition to the above- noted factors, the court, in deciding what an appropri- ate penalty would be, took note of the amount of money Transpave had invested in its safety systems subsequent to the accident. For instance, in 2006, Transpave spent more than half a million dollars to put its two plants at the safety level of Europe, which is higher than the one in force in North America. Following the accident, Transpave undertook many mea- sures to help ensure that such an accident did not reoccur. What this decision demon- strates is that, while there are no hard-and-fast rules to play by to ensure an orga- nization remains insulat- ed from liability, it would be prudent for a corpora- tion to incorporate all the best practices and industry standards into an occupational health and safety management system. As discussed above, in rendering its decision, the court appeared to be particu- larly influenced by the mea- sures implemented after the employee's death to prevent a recurrence. Implementing health and safety measures will help demonstrate to a court that all reasonable steps are being taken by the organization to ensure the workplace is safe. More importantly, how- ever, is that although it took four years for this first conviction and fine to be imposed under the amend- ments, employers, senior management, and members of boards of directors should not allow themselves to sup- pose that the Criminal Code will not be used in the future to prosecute where there is a statutory breach. Bill C-45 has made it easier to con- vict a corporation criminally based on the conduct of its employees. And it will likely be increas- ingly used in the future. LT Pradeep Chand is a former fed- eral prosecutor who currently practises occupational health & safety law at Lang Michener LLP in Ottawa. His e-mail is pchand@langmichner.ca. to the Editor to meet to consider this case, not the full 39 members of council. Readers of the Law Times will recall that, in the Boilard case, the Canadian Judicial Council mem- bers who decided the matter did not agree with the conclusions of the report of the inquiry committee at the time. Panel that recommended an inquiry committee, and none of the judges who were members of the inquiry committee itself will be involved in any way in the deliberations regarding the report of the inquiry committee. Conversely, the members of the CJC who will debate this matter have not participated in any way in the work of either the panel or the inquiry committee. In total, 21 members are expected www.lawtimesnews.com As was the case then, no advance determination has been made. In accordance with the applicable by-laws, a judge subject to such proceedings has an opportu- nity to make written representations and address council members about any concerns regarding the inquiry committee report. The 21 council members will then make their decision, after considering all the available information. Executive Director and Senior General Counsel, Norman Sabourin, Canadian Judicial Council

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