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McGowan said he’s also hopeful that the criminal investigation into the Cargill situation could be a precedent-setter, inspiring other investigations into COVID-19 outbreaks across Canada.
“There’s no doubt in my mind that many employers across the province, and indeed across the country, did not do enough to keep their workers safe in the context of COVID,” he said.
The 2004 Westray Act, named for a 1992 coal mine explosion in Nova Scotia, opens up the possibility for employers to be prosecuted under the Criminal Code of Canada for workplace incidents that result in injury or death. However, the provision is rarely used and there have been even fewer convictions.
Adams, the law professor, said there are a couple of reasons for that. One, to be found guilty of criminal negligence, an employer’s behaviour must be proved to be a “marked and substantial” departure from the conduct of a reasonable person. It also must be proved that the employer knew of the risks to employee safety and ignored those risks or was willfully blind to the obvious risks.
Adams said if charges are laid in the Cargill case, the prosecution could argue that it was apparent early on that COVID-19 was highly contagious and that it was incumbent on all employers to do everything possible to mitigate the risks to employees. But he said it would be easy for the defence to counter that by saying that in the early days of the pandemic, there was not yet any accepted standard on how to deal with the virus and employers were adapting to a rapidly changing situation.