This article first appeared in the March 28, 2017 issue of the bulletin Les experts de la construction of the Association patronale des entreprises en construction du Québec.
Following a visit by a CNESST inspector to your construction site, or a serious accident or death on site, your company receives a statement of offence under section 237 the Occupational Health and Safety Act (“OHSA”) indicating that it is liable to a fine of between $15,000 and $300,000. Many people will say that it’s just a fine – nothing major – wrong!!
Employers and even many lawyers continue to be unaware of the collateral effects of pleading guilty to OHSA offences: there are however a lot of them, and they can lead to the shutting down of the company, particularly in the construction industry.
For example, pleading guilty to a breach of the OHSA can result in a lowering of the company’s quality ranking in connection with public calls for tenders, additional criminal charges, increased risk of a civil lawsuit, exclusion from a prevention mutual insurance group, and the suspension or cancellation of a construction contractor’s licence.
In cases of serious or fatal accidents, the CNESST follows a well established process: publication in the media of investigation reports, making them available on line1, holding a press conference, and media interviews.
In such cases, pleading guilty to an offence under the OHSA, particularly under s. 237, in addition to making it easier to prove criminal negligence, can lead to the additional criminal charge of manslaughter. In Fournier v. R.2, following a preliminary inquiry on April 16, 2016 involving a Montreal-area construction contractor, the Superior Court upheld a committal to stand trial on charges of manslaughter and criminal negligence causing death.
Furthermore, a worker who has suffered an employment injury may bring a civil suit against an employer other than his or her own employer, if that employer is subject to the Industrial Accidents and Occupational Diseases Act3, to recover the amount by which the loss sustained by the worker exceeds the benefit received under the Act. A guilty plea to an offence under the OHSA may be fertile ground to rely on for a plaintiff worker who was injured in connection with the alleged offence.
Finally, section 70 of the Building Act4 specifies those situations that can lead to the suspension or cancellation of a contractor’s licence. With respect specifically to the OHSA, subsection 70 (1) provides as follows:
70. The Board may suspend or cancel a licence where the licence holder:
(1) has been convicted of an offence under this Act, the Consumer Protection Act (chapter P-40.1), the Act respecting labour relations, vocational training and workforce management in the construction industry (chapter R-20) or the Act respecting occupational health and safety (chapter S-2.1), if the serious nature or frequency of the offence justifies the suspension or cancellation;
Pleading guilty to an offence under the OHSA can thus result in the suspension or cancellation of a construction contractor’s licence. The cancellation of a licence issued by the RBQ means nothing less than the death of a company operating in the construction industry.
Consequently, before pleading guilty to a statement of offence issued by the CNESST under the OHSA, be sure to consider all of the potential ramifications!