By Satinder Sidhu and Simon Wu
Introduction
Most construction projects are inherently risky and failure to adhere to safety protocols can result in criminal liability. In 2004, the Criminal Code was amended to modernize the criminal law’s approach to establishing criminal liability of corporations and employees for workplace deaths and injuries.[1] This amendment came into place after 26 miners lost their lives in an explosion in Nova Scotia. Pursuant to these amendments, corporations can be convicted of criminal negligence when:
- a representative or representatives of the organization acting within the scope of their authority were a party to the offence; and,
- a senior officer responsible for the aspect of the organization’s activities relevant to the offence, departed markedly from the standard of care that could reasonably be expected to prevent the representative from being a party to the offence.[2]
Consequences of criminal negligence include fines for both the individual and the corporation, and up to life in prison.
Since 2004, a construction company and its employees have only been charged with criminal negligence three times in BC. A criminal negligence trial was recently heard in BC Supreme Court.
Case Background
The recent case before the BC Supreme Court related to an incident on October 11, 2012, where workers of J. Cote & Son Excavating (“J. Cote”) were installing storm and sewer lines for the City of Burnaby. As they were working, a retaining wall toppled onto two pipelayers working in a trench. One of the pipelayers died and another suffered injuries.
An investigation by WorkSafeBC found that J. Cote had failed to recognize hazards on site, which led to a police investigation and charges being laid by the Crown Prosecutors Office. The charges included criminal negligence against J. Cote and manslaughter charges against the site foreman.
Other Examples Criminal Negligence in Canada
The last construction related criminal negligence was also heard in BC, R. v. Stave Lake Quarries Inc., 2016 BCPC 377. In that case, an inexperienced and unlicensed heavy truck operator was rolled over by the truck she had just operated when she parked the truck on a slope without engaging the parking brake. The company was ultimately fined $100,000 plus a $15,000 victim surcharge for criminal negligence causing death.
A recent review conducted by United Steelworkers found that since the 2004 amendments to the Criminal Code, there have only been 26 decisions across Canada dealing with criminal negligence in construction. Of these decisions, 11 resulted in convictions, with three resulting in prison sentences for individuals.[3] Corporate fines have ranged from $100,000 to over $1 million. These figures highlight the rarity but severe consequences of such prosecutions, underlining the significant potential risks for companies and individuals in the construction industry.
When tragedy strikes on a construction project, it is likely that investigations into criminal negligence are quickly underway. This was likely the case in a recent incident where a worker at the Oakridge development site in Vancouver tragically died when a load from a crane fell multiple floors and struck her. Late last year a landslide in Lions Bay resulted in 2 fatalities. The incident has been reported to be under police investigation as the landslide may have resulted from development work in the area.
Conclusion
Although rare, criminal liability is a serious potential risk for construction operations. The implementation and strict adherence to safety protocols is of course key to minimize risk of injury or death on construction sites. Corporations involved in development and construction work and their representatives must be vigilant in their duty to prevent bodily harm and to adhere to the expected safety standards for the type of construction underway.
[1] Government of Canada, “Criminal liability for workplace deaths and injuries – Background on the Westray Law”, https://www.justice.gc.ca/eng/rp-pr/other-autre/westray/p1.html
[2] Ibid.
[3] United Steelworkers, “Corporate Criminal Liability 2004-2024 A review of legal cases since the enactment of the Westray amendments to the Criminal Code of Canada”, https://usw.ca/wp-content/uploads/2024/05/CorporateCriminalLiability-EN-2024.pdf.
