Workplace Fatalities & Criminal Negligence

Three Investigations, One Set of Facts

When a worker dies, three separate state processes begin almost simultaneously and run on different tracks, to different standards, with different powers.

The Ministry of Labour, Immigration, Training and Skills Development investigates for regulatory offences under the Occupational Health and Safety Act, using inspection powers that compel the production of records and, in practical terms, the cooperation of your staff. The coroner investigates the death itself, may order a post-mortem, and will decide whether an inquest is held. The police attend and decide whether the death supports a criminal investigation — most often for criminal negligence causing death.

These processes do not coordinate their timing for your benefit. Evidence gathered under regulatory compulsion in week one can become the subject of a fight over admissibility in a criminal proceeding in year three. Statements taken from supervisors at the scene, before anyone thought about counsel, become the centrepiece of the case against them. Decisions made in the first forty-eight hours — about the scene, the documents, the internal report, and who speaks — shape everything that follows.

Mor Fisher LLP acts for companies, directors, officers and individually charged supervisors after a workplace death. We are a criminal defence firm; when a fatality file turns into a criminal negligence investigation, that is the work we do every day. For the regulatory side in isolation, see Occupational Health & Safety Act Charges.

The First Forty-Eight Hours

Preserve the scene — it is a legal duty

The OHSA prohibits disturbing the scene of a fatality or critical injury, other than to save a life, relieve human suffering, maintain an essential public utility or public transportation system, or prevent unnecessary damage to equipment or property, until an inspector permits it. Moving equipment, cleaning up, or “making it safe” beyond what the exception allows is itself an offence, and it is read by investigators as consciousness of guilt.

Give the notices the statute requires — and nothing beyond them

Notice to the Ministry, to the joint health and safety committee or health and safety representative, and to the union is mandatory. A written report follows within a prescribed period. That report is a legal document that will be read to a jury. It should be accurate, complete as to what the statute requires, and drafted with counsel — not written in the first few hours by a safety coordinator who is also a potential defendant.

Separate the internal investigation from the operational response

You need to know what happened, quickly, in order to prevent a recurrence. You also need that inquiry conducted in a way that does not manufacture the prosecution’s best evidence. Internal investigations, engineering analyses and root-cause reviews should be commissioned through counsel so that the analytical product is protected by solicitor-client privilege. The underlying facts are never privileged, and no one should ever be told to withhold or alter a record. The distinction is between preserving facts, which is required, and volunteering conclusions, which is not.

Do not let your people be interviewed without advice

Supervisors, foremen and managers are potential defendants. They will be asked to explain the job, the plan, the training and the decision that morning. They are entitled to advice about what they are compelled to answer, what they are not, and what the consequences are. Arranging that advice is not obstruction — it is the ordinary conduct of a serious file.

Why the Company and the Individual Need Separate Counsel

This is the point most often handled badly, and the one with the most severe consequences.

The corporation’s due diligence defence frequently runs like this: we had a safety system, it was documented, it was trained, it was enforced, and on this occasion an individual departed from it. The supervisor’s defence frequently runs like this: the system existed on paper, the schedule and the resourcing made it impossible to follow, and everyone above me knew it.

Both positions can be advanced honestly. They cannot be advanced by the same lawyer. A lawyer acting for the company cannot advise a supervisor whose interests may require blaming the company, and a lawyer who has taken information from both cannot continue for either once the conflict crystallizes. The conflict rarely announces itself at the start; it emerges as disclosure arrives. The only reliable protection is to identify who might be charged personally at the outset and arrange independent counsel then — paid for by the company where its policies or indemnity provisions allow, but independent in fact.

Directors and officers sit in the same position. They owe personal statutory duties under the OHSA — an obligation imposed on them directly, not one they inherit from the corporation — and they can be charged personally on the same set of facts as the corporation. We act for individuals in exactly this position.

Criminal Negligence: The Westray Amendments

In 2004, Parliament amended the Criminal Code in response to the Westray mine disaster. Two provisions matter most.

Section 217.1 creates a legal duty: every person who undertakes, 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.

Sections 22.1 and 22.2 set out when an organization — a corporation, a partnership, a municipality and other bodies — is a party to an offence based on the conduct of its representatives and senior officers. The practical effect is that an organization can be prosecuted for what its people did and for what those with real authority over operations failed to do about it. Two features of that scheme drive the defence work. The first is who counts as a senior officer — a question answered by the role a person actually played in managing an important aspect of the organization’s activities, not by their title on an org chart. The second is that the organization’s liability is not made out simply by pointing to an employee’s error; the statutory route from an individual’s conduct to the organization’s guilt has its own requirements, and each of them is contestable.

Breach of the s.217.1 duty can found a charge of criminal negligence. Under section 219, a person is criminally negligent who, in doing anything or omitting to do anything that it is their duty to do, shows wanton or reckless disregard for the lives or safety of other persons. Where death results, the charge is criminal negligence causing death under section 220; where the result is bodily harm, section 221 applies. Criminal negligence causing death is an indictable offence, and it sits at the top of the range of consequences a workplace death can produce.

The threshold is deliberately high. Criminal negligence is not carelessness and it is not an OHSA breach with a worse outcome. The conduct must be a marked and substantial departure from what a reasonable person would do in the circumstances — a materially higher bar than the ordinary negligence that grounds a civil claim, and higher again than the failure to carry out a prescribed measure that grounds an OHSA charge. An employer can lose an OHSA prosecution outright and still be nowhere near the criminal standard. That gap between a regulatory breach and criminal fault is the central battleground in these cases, and it is where a company or an individual facing both tracks has the most to gain from defence counsel who litigates criminal standards routinely.

A criminal charge changes the procedural picture entirely: the right to silence applies in full, Charter remedies are available, disclosure obligations are the Crown’s, and the standard of proof is beyond a reasonable doubt on every element. It also changes the stakes — see Murder & Manslaughter for the adjacent homicide framework, and Bail Hearings & Reviews where an individual is arrested.

The Coroner’s Investigation and Inquest

Ontario’s coroner system is not a prosecution. A coroner investigates to determine who the deceased was, and how, when, where and by what means they died. The coroner may order a post-mortem examination and may call an inquest, which is held before a jury. For most deaths an inquest is discretionary, but the Coroners Act makes an inquest mandatory for certain categories of workplace death, and construction and mining fatalities have long been treated as falling within that group. Whether a mandatory inquest is engaged on a particular set of facts is a question worth answering early, because it changes the timeline the company is planning against.

An inquest jury does not decide civil or criminal liability, and it is barred from making findings of legal responsibility or expressing conclusions of law. What it does is make recommendations directed at preventing similar deaths — and those recommendations, along with the public evidence that produced them, are read closely by regulators, plaintiffs’ counsel, insurers and the media.

Parties with standing can participate, call and cross-examine witnesses, and make submissions. Because inquests are usually scheduled after the prosecution concludes, their timing interacts with the other tracks; where they overlap, the sequencing question — and whether your evidence at an inquest can be used elsewhere — requires careful handling.

What We Do

• Attend on short notice after a fatality and manage the interface with the Ministry, the police and the coroner
• Advise on scene preservation, statutory notices and the written report
• Commission privileged internal and engineering investigations through counsel
• Identify conflicts early and arrange independent counsel for individually exposed supervisors, directors and officers
• Defend OHSA charges and Criminal Code criminal negligence charges, including at trial
• Represent parties with standing at coroner’s inquests
• Negotiate resolutions across parallel proceedings rather than one file at a time

Collateral Consequences

Beyond the penalty: prequalification and bidding exclusions, insurance and bonding consequences, WSIB implications, professional licensing exposure for regulated individuals, sustained media coverage, and inquest recommendations that become the compliance standard the company is measured against afterward. For the wider regulatory context, see Regulatory Offences & Provincial Prosecutions.

If there has been a death at your workplace, the decisions that matter are being made right now. Contact Mor Fisher LLP at 705-721-6642 or through our contact page — we act for companies and, separately, for supervisors, directors and officers who need their own counsel.