In the early spring of this year, Transpave Inc., the first company charged with "criminal negligence causing death" under the Criminal Code, was ordered to pay a fine of $110,000 as a result of a workplace accident resulting in the death of an employee.

On December 7, 2007, Transpave Inc., a concrete block manufacturer northwest of Montreal, pled guilty in Saint Jerome, Quebec to charges of "criminal negligence causing death" under the Criminal Code. That charge arose from a 2005 workplace fatality at the company. A 23-year-old worker, Steve L'Écuyer, was killed while trying to clear a jam in a machine. Investigations by Quebec's Health and Safety Board and provincial police found the company was negligent when it allowed L'Écuyer to operate the machine while its motion detector safety mechanism was deactivated.

This case is the first prosecution of a corporation under the new criminal negligence provisions of the Criminal Code. On March 31, 2004, as a result of Bill C-45, safety at the workplace became a matter for criminal enforcement. Bill C-45 amended the Criminal Code to impose a new duty on organizations and corporations to ensure workplace health and safety.

This new duty contained in the criminal negligence provisions of the Criminal Code (s. 217.1) requires that "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."

What is important to note is that the word "everyone" includes individuals, organizations and corporations. Should a workplace accident occur, the amendments made by Bill C-45 make it possible for a corporation (or its supervisors or representatives) to be charged with criminal negligence.

In the Transpave case, the Crown and the Defence attorney made a joint submission to the Court and agreed that a fine of $100,000 would be an appropriate punishment. In sentencing Transpave Inc., the Court noted that the severity of the offence was high given that a death of a person ensued. However, the Court also noted that Transpave is a family corporation, and it had derived no advantage from the perpetration of the offence. Further, there had been no planning of any sort to commit the offence in question. The Court also commented that safety regulations had been in place prior to the accident, and noted that there was an existing health and safety committee at Transpave, as well as a code of conduct for the employees to follow.

In addition to the above noted factors, the Court, in deciding what an appropriate penalty would be, took note of the amount of money Transpave had invested in its safety systems subsequent to the accident. For instance, in 2006, Transpave spent more than half a million dollars to put its two plants at a safety level comparable to those in Europe, and one that is higher than the one in place in North America. Following the accident, Transpave undertook many measures to help ensure that such an accident would not recur.

What this decision demonstrates is that, while there are no hard and fast rules to play by to ensure an organization remains insulated from liability, it would be prudent for a corporation to incorporate all the best practices and industry standards into an occupational health and safety management system. This will help demonstrate to a court that all reasonable steps are being taken by the organization to ensure the workplace is safe.

Ed.: A similar article under a different title was also published by the Ottawa Business Journal