A company pleads guilty to an offence of criminal negligence causing the death of an employee

March 19, 2008

Bill C-45 received royal assent in November, 2003 and came into force in March 2004. Therefore, it is only recently that the first accusations have been brought under these new legislative provisions, and in Quebec, a first decision was rendered on March 17, 2008.

The Criminal Code of Canada ("CCC") was amended by adding subsection 217.1 which imposes new occupational health and safety obligations: "Every one 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".

This subsection complements section 219 CCC which deals with criminal negligence:

            "219 (1) Every one is criminally negligent who

            a) in doing anything, or

            b) in omitting to do anything that it is his duty to do,

            shows wanton or reckless disregard for the lives or safety of other persons.

            (2) For the purposes of this section, "duty" means a duty imposed by law."

In September 2006, Transpavé inc., a Saint-Eustache company which manufactures and distributes concrete products, was charged with criminal negligence causing the death of one of its employees, a first in Quebec as regards occupational health and safety. The company recently pleaded guilty and, on March 17, 2008, was sentenced to a fine of $100,000 and to an additional fine of $10,000.

The charge resulted from the events of October 11, 2005 when a young employee died on the job, crushed under the grapple of a palletizer. The CSST inquiry revealed, among other things, that the safety feature for the hazard area had been overridden and that a hazardous work method had been used to remove a row of paving stones on a board located under the grapple. Judge Paul Chevalier of the Court of Quebec remarked, in his decision rendered on March 17, 2008, that "neither the company nor any of the employees were aware that the board detection lever of the conveyor could be locked and unlocked. There was an optical beam security system set up to limit access to the place where the accident occurred and the company and directors were unaware that it had been neutralized when the accident occurred." Judge Chevalier also noted that: "It is therefore not in an active or positive manner that the company committed the offence, but through its inaction, in a passive way, without planning."

Additionally, the Judge considered, when imposing the fine, the large amounts of money that Transpavé spent on workplace health and safety in the two years following the tragedy.

Pursuant to subsection 735(1) a) CCC, the amount of the fine imposed to an organization is left to the discretion of the court, and takes into consideration several factors to determine the sentence, including any advantage realized by the organization as a result of the offence or the risk of subsequent offence, the effect of the sentence on the economic viability of the enterprise and the keeping of employees in their positions and the adoption of measures by the company to reduce the probability of it committing other offences (718.21 CCC). The court may also issue probation orders requiring the organization to give restitution to a person for any loss or damage suffered as a result of the offence or establish policies, standards and procedures to reduce the likelihood of the organization committing a subsequent offence, etc. (732.1 CCC).

In addition to subsection 217.1 CCC, subsection 22.1 was also added to the CCC. It seeks to assist the prosecution in proving that an organization took part in a criminal act:

 

"22.1 In respect of an offence that requires the prosecution to prove negligence (e.g.: s. 219 CCC.), an organization is a party to the offence if:

          a) acting within the scope of their authority,

(i) one of its representatives is a party to the offence, or

(ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and

b) the senior officer who is responsible for the aspect of the organization's activities that is relevant to the offence departs - or the senior officers, collectively, depart - markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence."

Under the CCC, "organization" includes a body corporate, society, company, firm, partnership, trade union or municipality. Moreover, "representative" is defined as follows: "in respect of an organization, means a director, partner, employee, member, agent or contractor of the organization".

Therefore, an organization may incur liability as a result of an act or omission by its individual representatives, not only its directing mind. From now on, organizations may be held liable when acts or omissions by their representatives are clearly negligent and the behaviour of their senior officers strays considerably from reasonable expectations under the circumstances.

Subsection 217.1 CCC is yet another addition to the legal obligations of the employer with respect to occupational health and safety issues. For instance, section 51 of An Act respecting Occupational Health and Safety provides that "Every employer must take the necessary measures to protect the health and ensure the safety and physical well-being of his worker".  This section also provides a series of steps that employers must take in order to meet general occupational health and safety obligations.

In conclusion, the Transpavé case serves as a reminder to companies of their significant potential liability in terms of occupational health and safety for workers; consequently, they must take the required steps to meet their numerous legal obligations in this regard.

DISCLAIMER: This publication is intended to convey general information about legal issues and developments as of the indicated date. It does not constitute legal advice and must not be treated or relied on as such. Please read our full disclaimer at www.stikeman.com/legal-notice.

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