In 2004, the Criminal Code was amended to create a new offence for companies that do not show sufficient concern for occupational health and safety regulations. Pursuant to the amendments, everyone 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 includes not only employees but the public at large as well.
A company can be held responsible for any acts or omissions committed by one of its officers, directors, partners, employees, members, agents or contractors. Prior to the amendments, a company could only be held criminally responsible for acts committed by its directing mind or its alter ego.
Further, contrary to criminal offences imposed under the Act respecting Occupational Health and Safety, the Criminal Code does not provide for a maximum sentence. Thus, the courts have great latitude to impose a sentence they deem appropriate under the circumstances.
The Criminal Code also gives the courts the power to issue probation orders directing, among other things, a company to make restitution to a person for any loss or damage the person suffered as a result of the offence. As well, the courts have the power to order a company to establish standards to reduce the likelihood of the company committing a subsequent offence.
R. c. Transpavé inc.
Last March, in a case called R. c. Transpavé inc., the Court of Québec issued the first penalty pursuant to the amended Criminal Code provisions.
In this case, Transpavé, a Saint-Eustache company that manufactures products made of concrete, pleaded guilty to criminal negligence resulting in the death of one of its workers.
The employee died when he was crushed by the grapnel of a pallet loader as he was attempting to remove a row of excess stones from a pallet, following a pile-up of boards.
The Commission de la santé et de la sécurité du travail conducted an investigation, which revealed that both the employee’s work procedures and the work area were dangerous. Transpavé acknowledged having failed in its duties to anticipate the danger, train its employees and ensure compliance with all safety procedures.
The Crown and Transpavé agreed to set the fine at $100,000. The matter then went before the court to determine if this agreement was an appropriate sentence. The court ordered Transpavé to pay a $10,000 fine in addition to the $100,000 fine agreed upon by the parties.
In its analysis of the factors listed in the Criminal Code to determine if the agreement between the parties constituted an appropriate sentence, the court considered numerous mitigating factors:
- In particular, it took into account that the company had already spent an amount exceeding $750,000 to ensure the safety of its facilities, as well as the fact that it was a small-sized family business.
- It also considered the absence of advantages gained by the company as a result of the offence, the lack of planning involved in carrying out the offence, the absence of prior criminal convictions, and the fact that the company had complied with all of the Commission’s recommendations.
- The court also emphasized the fact that the company dealt with the situation in a very sensitive manner and that it had satisfied its obligations after the tragic accident.
Lessons for Employers
The Transpavé case demonstrates that fines for violating the amended Criminal Code provisions can be significant. Despite a number of mitigating factors, Transpavé still had to pay a $110,000 fine. In cases with fewer mitigating factors, especially in cases involving big multinational companies, the fines may be even more substantial.
The goal of the amended criminal provisions is not to overlap with provincial institutions in occupational health and safety matters, and it is likely that law enforcement will only investigate very serious cases. However, these new criminal provisions certainly provide an additional incentive to ensure you comply with occupational health and safety regulations.
Prevention through the implementation of an effective occupational health and safety program remains one of the best solutions to satisfy your duties. Make sure that your employees and other hired persons are aware of your program, that they are informed about the safety hazards related to the type of business you are operating, and that they comply, at all times, with safety procedures.