League and Williams Lawyers

Tag: BC Law

  • Criminal Liability of Employers for Workplace Negligence

    Criminal Liability of Employers for Workplace Negligence

    Criminal Liability of Employers, the Case of Stave Lake Quarries

    Stave Lake Quarries in 2015 was the first employer in B.C. to face criminal liability as it was charged with criminal negligence causing the death of an employee. This article should be of interest to employers and the families of deceased employees because the same legal principles apply across all industries.

    Briefly, the facts of the case are that 22-year-old, Kelsey Anne Christian, started work at the Stave Lake Quarries in Mission B.C. in 2007 and was killed on her second day on the job when the truck she was operating flipped over, pinning her underneath. A government investigation concluded that she had not been provided adequate training on the operation of the quarry truck before she was required to operate it. In April 2015, eight years after the accident, the employer and two other employees were charged with criminal negligence.

    This is not the first case where an employee has been charged with criminal negligence causing death. Readers will recall the navigation officer of the Queen of the North was convicted of two charges of criminal negligence, causing death and sentencing to four years in prison. It is, however, the first time an employer in B.C. has faced criminal liability and has been charged under the criminal negligence sections of the Criminal Code.

    (Mis)Understanding the Law

    In reading news articles about this tragic story, my attention was caught by a disturbing quote that the President of the B.C. Federation of Labour made in response to the charges being laid: “we have long held the view that employers who are negligent and cause serious injury or death of workers should be criminally prosecuted” [source: CBC]. My first impression was that the President had been misquoted, but the article went on to provide a further quote: “in every one of those cases, we have said there should be charges and if indeed employers are found to be negligent – then they should face serious penalties including jail time”.

    The reason these quotes should be of concern to employers is that they demonstrate a serious, but common, misunderstanding of the law of criminal negligence. Negligence by an employer causing the injury of an employee is a very common occurrence, indeed it happens every day in B.C. An employer may forget to change a light bulb and a worker falls down a dark stair case. An employer delays in replacing a broken wooden ladder, or a malfunctioning power tool, and a worker is injured using it. These are common occurrences of negligence by an employer. One of the fundamental purposes of workers compensation (WorkSafeBC) is to protect employers from injuries (and financial loss) suffered by their employees because of the employer’s negligence. Distinguishing then between common negligence and criminal negligence is of utmost importance.

    Common/Simple Negligence versus Criminal Negligence

    Common negligence is simply the failure to take reasonably adequate care to prevent harm to others that is foreseeable. In industrial settings, employees and employers cannot be sued by an injured worker for common negligence because the workers compensation system prohibits such lawsuits; in exchange for giving up this right to sue, the injured worker has a right to workers compensation benefits even if they are at fault for their own injuries.

    Just as an employer cannot be sued civilly by an employee for the employer’s common negligence, an employer cannot be liable for criminal charges for common negligence either. The Federation of Labour’s statement that “employers who are negligent and cause serious injury or death of workers should be criminally prosecuted” is ironically a dangerous statement as it would mean almost every employer in the province would at some time be exposed to a criminal prosecution. Practically speaking, the government regulation of employer’s negligence is managed by the workplace safety arm of WorkSafeBC, which can levy substantial fines against employers for maintaining unsafe work places.

    Criminal negligence on the other hand, the form of negligence alleged in the death of Ms. Christian, is a much more serious form of negligence, and hence the penal sanctions associated with a conviction for criminal negligence. If convicted of criminal negligence, for example, a person can be liable to imprisonment for life. The average sentencing for criminal negligence causing death currently appears to be in the range of 2 to 4 years.

    The Legal Test for Criminal Negligence

    There have been many court cases that discuss the definition of criminal negligence but it can be concisely defined as having two requirements: (1) a substantial departure from reasonable care and (2) a wanton or reckless disregard for the safety of others.

    A substantial departure from ordinary care is significantly different than the degree of error required to find somebody liable for common negligence. A person can be liable for common negligence for even the slightest departure from what a reasonably prudent person would do in similar circumstances. Criminal negligence on the other hand, and its requirement that there be a substantial departure, means the court will look to not only what a reasonably prudent person would do, but also assume a significant margin of error in their judgment. Only if a person’s conduct falls well outside of that ordinary margin of error has the person committed a substantial departure.  It can be a difficult concept to understand until it is applied to the facts of the case, and every case is different. In the case of Ms. Christian’s death, the court will need to be convinced that what Ms. Christian’s employer did or failed to do was far removed from what a reasonably prudent employer would have done, and even then, the court will have to be satisfied the second requirement for criminal negligence is also met.

    The second requirement for criminal negligence is a wanton or reckless disregard for the safety of others. Wanton or reckless disregard means that a person contemplated the risk of their acts or omissions harming someone and chose to disregard that risk. It is the “yeah, that could happen, but I don’t care” mentality.  One reason that criminal negligence charges are rarely brought at all, and particularly against employers, is because this level of disregard for safety is fortunately rare, but more importantly, difficult to prove in court. Although the accused may deny ever considering the risk (and hence cannot be found to have considered it and disregarded it), the court will look at the surrounding facts of the case and conclude whether a reasonable person should have considered the risk and therefore whether the accused should have considered the risk (whether he denies doing so or not). For example, in the Queen of the North sinking, the navigating officer maintained he did not consider striking Gil Island was a risk. Ultimately, the court did not accept that evidence, and found that either he must have considered the risk but chose to disregard it, or that he didn’t consider it when he clearly should have.

    In closing, the test for criminal negligence causing injury or death is a high one and employers should not be concerned that they will face criminal liability for simple negligence causing injury to their employees. That said, employers can be heavily sanctioned by authorities such as WorkSafeBC for simple negligence, and so should always maintain safe workplace practices.

    Darren Williams is the Principal Lawyer of League and Williams Law Corporation in Victoria B.C. where he focuses his practices on the areas of personal injury law, marine la and estate disputes.  He can be reached for question or comment locally 250-888-0002 or at info@leaguelaw.com.  This article was originally published in the June 2015 edition of Western Mariner magazine.

  • What is a Crosswalk? The Answer Might Surprise You

    What is a Crosswalk? The Answer Might Surprise You

    Most people think that a crosswalk is only that area on a street marked with parallel white lines.  Unfortunately, most people are incorrect.  The B.C. Motor Vehicle Act defines a crosswalk as:

    “crosswalk“ means

     (a) a portion of the roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface, or

     (b) the portion of a highway at an intersection that is included within the connection of the lateral lines of the sidewalks on the opposite sides of the highway, or within the extension of the lateral lines of the sidewalk on one side of the highway, measured from the curbs, or in the absence of curbs, from the edges of the roadway;

    B.C. law clearly states that a crosswalk includes an unmarked area if it is at an intersection and within imaginary lines drawn from opposite sides of the highway (road), or within imaginary lines on one side of the highway (such as across the base of a “T” at a T-intersection).  An intersection is defined in the B.C. Motor Vehicle Act as:

     “intersection” means the area embraced within the prolongation or connection of the lateral curb lines, or if none, then the lateral boundary lines of the roadways of the 2 highways that join one another at or approximately at right angles, or the area within which vehicles travelling on different highways joining at any other angle may come in conflict;

    This means that a crosswalk exists whether the intersection is controlled by a stop sign or a stop light, and whether or not there are distinct pedestrian markings.

    At LaW, we care about pedestrian rights and fight to make sure your rights are protected.  For a free consultation, call 250-888-0002.

  • When is an Employee Entitled to Severance Pay?

    When is an Employee Entitled to Severance Pay?

    4-DW-termination-from-emplyee-perspWhen is an employee entitled to a notice of termination of their employment, or to be paid out for the time instead (called severance pay), is an unfortunately common question. In some cases, an employee is left with no right to severance, but in many others, the employee may overlook significant entitlements because they do not understand their rights. There are, of course, at least two sides to every story, so in future blogs we will outline the steps a prudent employer should take to terminate an unwanted employee, but for now, an employee who faces the dismal view of being fired themselves should ask the following questions.

    Question 1: Am I unionized?

    Unionized employees’ rights to dispute termination or seek severance pay are limited by the terms of the collective bargaining agreements (“CBA”) between their unions and their employers. These CBAs represent a trade-off where the employee assumes certain protections offered by the agreement (such as wage rates, benefits, seniority entitlements, pension, a grievance process, etc.), in exchange for giving up other rights. A unionized employee must dispute their termination through the grievance process under the CBA and cannot pursue severance pay against the employer in any of the processes discussed below.

    Question 2: Am I an employee, a contractor, or a dependent contractor?

    If you are not a unionized employee, the second question to ask yourself is: am I a true employee, a contractor, or a mix of these types of workers, some call a dependent contractor? This is important because, in the absence of a contract saying otherwise, only an employee and a dependent contractor are entitled to severance. A true contractor has no entitlement to notice of their termination outside of what is stated in their contract, if anything. Employees and dependent contractors, on the other hand, are entitled to reasonable notice of termination if their contract is silent on this issue. Employees and dependent contractors are people defined by several different legal criteria but both rely primarily on a single employer for work and tend to be under a greater degree of employer control than independent contractors.

    Question 3: Was I fired for just cause?

    Regardless of whether you are an employee, a contractor or a dependent contractor, if you are fired for just cause you are not entitled to severance pay (unless a written contract say otherwise, which would be very unusual). The law says that an employee can only be fired for just cause if their conduct fundamentally undermined the employment relationship. The threshold for just cause can be high. Significant dishonesty, theft, and gross negligence are examples of such behavior. Mere mistakes, irregular lateness, minor insubordination, and so on can only be just cause for termination if the employer provides clear written warnings in advance that such behavior will result in termination. The employer bears the burden of proving they had just cause to fire an employee.

    Question 4: Are my rights limited by an employment contract?

    An employee and a dependent contractor can have their rights to reasonable notice of termination limited by terms of a written employment contract. Such written agreements are relatively rare in the employee industries. Unless the court finds the employer has conducted themselves in such an egregious way as to disentitle them from relying on the written agreement, terms in the contract that restrict the employee from claiming severance beyond the minimum discussed below are enforceable and the employee cannot claim more than what they provide.

    Question 5: If there is no contract, or it is not enforceable, what law governs?

    In the absence of a contract, the entitlement to severance comes from two possible sources: (1) legislation such as the B.C. Employment Standards Act (“ESA”) or the federal Labour Code, and (2) judge-made law, called common law.

    Regarding legislation governing severance, the majority of employees will be subject to the provisions of the ESA as opposed to the Labour Code. These laws provide for a minimum severance entitlement, which is roughly equivalent to 1 week for every year of service up to a maximum of 8 weeks. Employment contracts that limit the employee’s right to severance cannot provide for less than what is stated in the ESA and the Labour Code. Common law on the other hand, which is pursued in a court such as the B.C. Provincial Court or Supreme Court, is often more generous and can generally award one month per year of service depending on the factors discussed below.

    Question 6: Should I choose Employment Standards/Labour Code, or a Judge?

    Awards for severance are typically much higher (often by a factor of 2 to 4 times) for long-term employees who seek a severance award in the courts under common law, as opposed to awards given under the ESA or Labour Code. This is because judges are not limited to awarding the amounts set by the ESA and the Labour Code. The maximum severance awarded by a judge can be about 24 to 26 months of pay in lieu of notice, as opposed to 8 weeks under the ESA. A judge awards severance based on factors that relate to how difficult it will be for the employee to replace their position and income, such as: age, seniority, education, specialization, years of service, and labour market conditions.

    People are often attracted to pursuing their severance claims under the simplified processes provided for by the ESA or Labour Code, but they often give up significant awards by not pursuing their claims in front of a judge. While some employees are concerned about the costs of hiring legal counsel to pursue their claims in court, employees should know that some lawyers pursue such claims on contingency (a no cure, no fee basis).

    If you have a question about this topic or another legal issue, contact us for a legal consultation.  Reach us at 250-888-0002, or via email at info@leaguelaw.com.

  • Distracted Driving – BC’s Leading Cause of Road Fatalities

    Distracted Driving – BC’s Leading Cause of Road Fatalities

    In British Columbia, distracted driving kills more people every year than any other motor vehicle related cause of death, including impaired driving. Despite the potentially devastating consequences, many British Columbians continue to engage in risky and distracting behaviour while driving.

    Recently, several videos were released in which people are captured driving while doing things that require concentration and dexterity. A woman on Vancouver Island was recently caught curling her hair while driving on the highway at about 90 km/h, and in another shocking situation, a woman is captured playing the guitar while driving on the highway. Of course, most distracted behaviour is not quite as overt or surprising. Cellphone usage comes to mind first to most of us when we think of distracted driving.

    Notwithstanding the fact that in 2014, the B.C. Government increased the penalty for the use of hand-held electronic devices while driving to a $167 fine and three penalty points, B.C. currently has the second most lenient penalties for distracted driving in Canada. Penalties for distracted driving vary greatly throughout Canada. In Ontario, for example, the maximum fine for distracted driving is $1,000, with a minimum penalty of $300, and in Nova Scotia, the fine is $579.

    A public consultation to determine whether penalties for distracted driving should be increased has been undertaken recently by the Minister of Justice of British Columbia. Some of the specific questions asked are: Should drivers be fined higher for texting while driving, given the associated risks? Should new drivers, or repeat offenders, face different sanctions than other drivers?

    If you have a question about this topic or another legal issue, contact us for a legal consultation.  Reach us at 250-888-0002, or via email at info@leaguelaw.com.

  • The LaW Team: Personal Injury, Estate, and Marine Law experts in Victoria, BC

    The LaW Team: Personal Injury, Estate, and Marine Law experts in Victoria, BC

    Established in August 2014, Victoria, BC based League and Williams (LaW) provides experienced, effective legal services in the areas of personal injury, marine law and estate litigation across British Columbia. LaW’s legal team of lawyers, and legal assistants led by principal Darren Williams has extensive litigation experience and delivers legal services with compassion and understanding.  The cornerstone philosophy of League and Williams is that clients should be enabled to have the best recovery possible and that fair and just settlements are the result of working collaboratively with the client and their care providers as a team.

    Darren Williams, lawyer & principal

    Darren Williams understands the real impact of the problems faced by his clients and arrives at the best resolution possible by providing an exceptional quality of legal services and advice.  Darren has a commitment and dedication to ensuring that his clients recover as best as possible – both physically and financially.  Darren believes that client satisfaction is the key to building and sustaining a leading personal injury firm in British Columbia.

    Aside from being a skilled personal injury lawyer, Darren also operates the largest maritime law practice on Vancouver Island and has written and published over 100 articles on maritime law issues.  Darren has been invited to speak and has presented on both maritime law and personal injury law issues at a number of conferences and events.

    Andrew Broadley, lawyer

    As a member of the LaW team, Andrew Broadley works collaboratively to ensure his clients receive a quality legal services and advice.  Andrew is committed to serving his clients’ interests, regardless of the legal challenge being faced and is dedicated to delivering results and trusted advice.

    Andrew was called to the British Columbia bar in 2016.  Prior to being called to the bar, he completed his articles under the supervision of Darren Williams, founding partner of LaW.  Previously, Andrew was a successful business owner who managed a chain of automotive service facilities before selling the business to a national chain to pursue the practice of law.

    Andrew practices collaboratively in the areas of personal injury law, and estate litigation.

    Andrew is a member of the Victoria Bar Association, the Canadian Bar Association and the Trial Lawyers of British Columbia.

    Matthew Melnyk, lawyer

    Matthew Melnyk is the newest member of the LaW team, continuing with the firm after completion of his articles under the supervision of LaW principal, Darren Williams in 2016.  Matthew is a hard working and dedicated lawyer who endeavours to work collaboratively with his clients and the rest of the LaW team to deliver the results his clients deserve.  Matthew believes working collaboratively to ensure that clients receive quality legal services and advice that they are satisfied with is key to succeeding in the practice of law.

    Matthew practices collaboratively in the areas of personal injury law, estate litigation and marine law.

    Matthew is a member of the Victoria Bar Association, the Canadian Bar Association and the Trial Lawyers of British Columbia.

    Legal Assistants and Support Staff

    In addition to the lawyers who practice at LaW are the team of legal assistants and support staff who enable our lawyers to deliver exceptional services to our clients.  Every member of the LaW team is detail-oriented and committed to our clients and their satisfaction and works to ensure that every client’s case gets the attention it deserves to get the best resolution possible.

  • League and Williams Makes Westside Village, Victoria, BC Home

    League and Williams Makes Westside Village, Victoria, BC Home

    League and Williams opened its doors in its Westside Village location in August 2014.  With expertise in personal injury law, estates disputes and marine law, the lawyers and staff of League and Williams are proud to call suite 210, 174 Wilson Street home.  Located in the Westside Village Shopping Centre, our office space was chosen with both our clients and our staff in mind – there is ample parking, a grocery store, medical offices, a bank, the Galloping Goose trail, a fitness facility, cafes and restaurants all nearby and the office is a short distance from Downtown Victoria.

    Our offices are equipped with cutting edge technology that enables us to serve our clients across British Columbia better – our electronic file system enables us to manage your file efficiently and effectively and improves access to information when and where it is needed.  The electronic file system also enables us to minimize our carbon footprint, enabling more environmentally friendly legal services.  An added benefit of our electronic system is that we are able to keep our clients up-to-date on the progress of their file at all times.  Further, our video conferencing facilities enable us to serve our clients across British Columbia and makes us a leader in tele-legal services.

    At LaW we value our clients and are proud of the legal services we provide in the areas of personal injury law, estate law, and marine law.  Feel free to browse the rest of our site for more details about who we are, and how we practice.  Check out our lawyers’ profiles.  If you have a personal injury, estate law or marine law problem – feel free to contact us by email at  info@leaguelaw.com, by phone at (250) 888-0002, or drop into our Westside Village Offices.  We offer free consultations and are here to help you – in many cases we do not get paid until you do.  If you are already represented, but unsure of your situation, we will gladly give you a second opinion regarding your rights.