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
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
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
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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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