Last August 11, the Quebec Court of Appeal dismissed the appeal and upheld the trial judge's decision finding CGF Construction Inc. (the "employer") guilty of criminal negligence causing death1. The victim in question, a truck driver with over 25 years' experience, died after losing control of the employer's heavy container truck, which flipped over on a downhill curve. The evidence at trial showed that the employer had failed to conduct proper maintenance on the truck and its braking system in the months leading up to the fatal accident, an omission that revealed a reckless or wanton disregard for the lives or safety of others and that more than significantly caused the victim's death.
Negligent truck maintenance
As a reminder, employers have a legal obligation to take the necessary measures to protect the health, ensure the safety as well as the physical and psychological integrity of their workers, pursuant to s. 51 of the Act respecting occupational health and safety. More specifically in the area of transportation, owners are required to keep their heavy vehicles in good mechanical condition, and to comply with maintenance standards, i.e. the inspection frequency procedure prescribed by regulation pursuant to s. 519.15 of the Highway Safety Code.
In this case, it was revealed at trial that the braking system of the truck in question was in an advanced state of deterioration, with the brakes operating at only 53% of their maximum capacity. Moreover, the employer was aware of the truck's mechanical problems. Indeed, there were 14 major defects relating to the brakes on the vehicle prior to the accident. These defects were the result of major deficiencies in the maintenance and repairs carried out on the truck, which rendered it "intrinsically dangerous"2 [our translation]. It also appears that the driver in question, as well as other colleagues, had repeatedly warned the employer's representatives of the truck's deteriorating condition. Taken together, these elements enabled the trial judge to conclude that the employer was criminally negligent in maintaining the truck, which should not have been on the road in such circumstances.
The Court of Appeal also pointed out that "(...) in such a highly regulated and dangerous field of activity, one would expect that [the employer] would carry out proper maintenance of its vehicles, just as a reasonable person carrying on the same activity in the same circumstances would have done"3 [our translation].
Corporate criminal liability
To assess the foreseeability of the offence and the degree of negligence or lack of diligence on the part of the employer, the Tribunal may take into account the company's past incidents involving the truck in question, as well as its attitude towards previous problems and the means implemented to resolve them. Such evidence may be as recent as the months preceding the accident, but may also date back several years before the accident, since in this case the evidence showed that the employer was aware of the problem afflicting the truck's maintenance and brakes, and also shed light on the means implemented to solve it. In this instance, a number of employees, past and present, testified about their inadequate working environment and conditions, as well as the safety shortcomings of the garage and the condition of the truck over the years.
Finally, since 2004, following the adoption of the Westray Bill and the subsequent amendment of the Criminal Code, companies can be held criminally liable for the acts or omissions of their representatives in the workplace4. It is clear that an additional degree of diligence on the part of any employer is required to avoid incurring liability through the acts or omissions of its representatives.
In the CGF Construction Inc. case, the foreman-mechanic in charge of the garage was a "senior executive" and his fault, residing in the failure to properly maintain the truck and more particularly its brakes, was imputed to the company, hence the present conviction against CGF Construction Inc.
In addition to costing the life of one of its employees, the mechanic's failure to perform maintenance also cost the company a $300,000 fine, in addition to a 15% victim fine surcharge and a 3-year probationary order with several conditions, including the retention of an external consultant and annual training for all its employees.
This ruling by the Court of Appeal is a reminder of the importance for all employers to take all necessary means in a timely manner to ensure the health, safety and physical integrity of their workers, and to adopt a proactive approach when concerns relating to their health and safety are brought to their attention. No negligence or serious carelessness will be tolerated from an employer who has a duty to prevent such accidents by ensuring that measures put in place to ensure the health and safety of its workers are both sufficient and respected by all its employees.
1. CFG Construction inc. v. R., 2023 QCCA 1032.
2. R. v. CFG Construction inc, 2019 QCCQ 1244, at par. 277.
3. Supra, note 1, at par. 98.
4. Criminal Code, R.S.C. 1985, c. C-46, s. 22.1.
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