Low fines and no jail time when a worker is killed in Manitoba

Not a single Manitoba company has been charged with criminal negligence for safety violations after a worker's death on the job, and provincial fines fall well short of the national median penalty.

Manitoba's median fine after a fatality is $78,000 in the seven years of data the CBC gathered from the province's listing of workplace health and safety convictions. That's well below the national median of $97,500 for the 250 cases of workplace fatalities on which a CBC News investigation received information.

Legislation in Manitoba allows for a $250,000 maximum fine for a single charge, but the highest ever imposed is $188,000.

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"It is potentially a real crime, and it's a real violent crime, in the sense that if somebody dies, violence has occurred," said Katherine Lippel, Canada research chair in occupational health and safety law at the University of Ottawa.

Despite thousands of worker deaths in the past decade in Canada, only five employers have ever served time behind bars in fatality-related incidents — with terms ranging from 15 to 120 days.

In Manitoba, authorities have relied on the Workplace Safety and Health Act to hold companies accountable.

The province has never charged a person or company under Bill C-45, a 2004 Criminal Code amendment that's also known as the Westray law, after a Nova Scotia coal mine where 26 miners died in an explosion. Its aim is to make sure companies take reasonable steps to ensure the safety of workers.

At the time the law was being discussed in Parliament, the government commented on its intentions for the bill.

"The criminal law must be reserved for the most serious offences, those that involve grave moral faults.… The government does not intend to use the federal criminal law power to supplant or interfere with the provincial regulatory role in workplace health and safety."

The burden of proof is higher for cases prosecuted under the Criminal Code than those prosecuted under Manitoba's workplace safety laws.

The two highest fines in Manitoba history were ordered in 2014. 

Vale Canada was fined $188,000 after Gregory Leason died in October 2011 in the T-3 mine in Thompson, Man. The company pleaded guilty to "failing to ensure, so far as reasonably practicable, the safety, health and welfare at work of its workers." Vale and the prosecutor agreed beforehand to the amount of the fine imposed by the judge.  

In the other case, a judge ordered Lafarge Canada to pay $188,000 after ironworker Allan Leschyshyn died at a northern hydro project.

Leschyshyn, 65, knew it would be his last job when he headed up north. The Stony Mountain man planned to retire after the three-week stint at Wuskwatim Generating Station near Thompson.

He and three other ironworkers were to dismantle some large temporary tents.

"Lafarge owned the site. They were doing the tent; they were doing the cement manufacturing inside the tent," Crown attorney Tim Chudy said at Lafarge's sentencing hearing in April 2014. 

Lafarge retained a separate tent contractor to direct the workers, according to the agreed statement of facts.

The crew took down a smaller tent on the morning of April 20, 2011, 13 days before Leschyshyn's retirement date.

They used the same system to tackle a second, larger tent. The fabric started ripping, but that did not stop the work, the agreed statement of facts says.

Around 5:30 p.m., a large rod ripped free from the tent and flew towards Leschyshyn, court documents say.

"It came with that velocity — like a catapult — and it hit him," said Wanda Leschyshyn, his widow. "[It] threw him up in the air. He turned three times and landed on his face."

Leschyshyn died instantly. His hard hat and safety gear offered no protection against the force of the blow, Chudy told the court at Lafarge's sentencing hearing in April 2014.

"He was inside a danger zone," Chuddy said.

Leschyshyn lay there for hours. A young RCMP officer stayed at his side until the coroner arrived.

It took almost two hours for Leschyshyn's wife to find out he was dead, she said. 

"I just fell down on the floor," she said.

She feels robbed of the retirement she and her husband had carefully planned. Now she wants to make sure it doesn't happen to anyone else.

Lafarge charged under workplace safety legislation

Lafarge, the main contractor on the Wuskwatim project, was charged with 16 breaches of Manitoba workplace safety legislation, with a maximum penalty of $250,000 per charge.

"An accident is defined as something which can't be prevented. This could have been prevented, and so was not an accident," Chudy said at the sentencing hearing.

"As a result of the workplace not being as safe as it could have been and should have been, a person, Mr. Leschyshyn … a grandpa, husband, father, tragically lost his life."

The agreed statement of facts stated there was no job risk analysis and no written safe work procedures for dismantling the tents.

"Mr. Leschyshyn should never have been within that zone while that tarp was being pulled back," Chudy said in court.

A 150-page safe work procedure for taking down the giant tents was implemented after Leschyshyn's death.

"Had that been in place at the time, I don't really believe that this incident would have happened," Chudy said.

Lafarge faced a maximum fine of $4 million if found guilty of all the charges.

'Truly a tragic accident'

"This was truly a tragic accident that was unforeseeable to Lafarge and Lafarge is truly sorry," said Lafarge lawyer Maria Grande at the sentencing hearing.

"Lafarge respectfully submits that the accident resulted from a series of events which individually were harmless and unforeseen. Lafarge accepts and acknowledges its responsibility in this matter and there is a heartfelt desire for closure. Accordingly, it has plead guilty to one count."

The charge was "failing to ensure, so far as reasonably practicable, the safety, health and welfare at work of its workers."

The Crown stayed the remaining 15 charges.

The judge ordered Lafarge to pay $188,000, after a joint recommendation of the Crown and the defence.

"In my view, the sentence is appropriate for the tragedy. And hopefully, it will prevent further tragedies," said Judge Marvin Garfinkel.

Leschyshyn's widow doesn't think it was enough.

"I am glad that they were fined. I am glad they were at least held accountable without getting off the hook. But, as far as the charges and fines … it failed," she said. "That is nothing for a large company like that."

Representatives from Lafarge's western headquarters in Calgary declined an interview but sent a statement.

"Lafarge was forever shaken by losing our colleague and friend, Allan Leschyshyn, in 2011," wrote spokesperson Jennifer Lewis. "The grief his family feels can only be multitudes stronger. It is our deepest value and highest priority to ensure all of our employees return home to their loved ones every day."

Then-enterprise minister Cliff Cullen, whose ministerial responsibilities included workplace safety, declined to comment on specific cases.

As for the system in general, he said "there is room for improvement." He pointed out that an advisory council on workplace safety and health is currently conducting a review and a report is expected before the end of the year.

One of the goals of the review is "reducing red tape and barriers to economic growth while ensuring necessary protections for the safety and health of workers."

Occupational health and safety law expert Katherine Lippel said the term "red tape" is often used to refer to regulatory protections for workers, consumers and the environment, and the goal is to reduce those protections.

"It's not about ordinary Canadians having a hard time with red tape, it's about business that are having a hard time with red tape," said Lippell.

Cullen said there is no intention to roll back safety rules.

"There are certainly areas out there that can be addressed without encroaching on safety," he said.

"We are looking forward to what the committee comes up with in terms of recommendations."

A push for jail time

"It becomes part of doing business. It's just a writeoff," said Steve Hunt of the United Steelworkers.

"I don't want to see a bunch of bosses in jail. In fact, if we saw one or two, 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."

Manitoba Justice Minister Heather Stefanson would not agree to an interview but sent a written statement.

"I recognize the Westray provision set out in the Criminal Code and its role in enforcing reasonable steps are taken to prevent harm to workers and the public. Manitoba's Workplace Safety and Health staff are trained to recognize factors that might indicate criminal negligence," Stefanson wrote. 

Note on methodology:

• For the purposes of this story, the fine is defined as the sum total of all court imposed fines in 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.