Criminal negligence of an employer: imposition of a severe and onerous penalty
A company was recently severely punished after being found guilty of criminal negligence causing the death of one of its workers. This is the second judgement rendered in Quebec against a company in connection with criminal negligence causing death.
Summary of facts
In September 2012, a worker at CFG Construction died in an accident involving a heavy truck belonging to the company.
The worker was assigned to recover scrap steel and instructed to load the container to its maximum capacity. However, he lost control of his truck at the bottom of a hill and died of the accident.
The investigation into the cause of the accident showed that there were 14 defects related to the brake system; including, the truck’s brakes were only working at 53% of their capacity. The truck’s mechanical problems were known to the employer, since the employee had repeatedly reported the degraded condition of his truck. In addition, the very skills of the mechanic responsible for maintenance were also questionable.
After several days of trial, Judge Hélène Bouillon of the Court of Québec found the company guilty of criminal negligence causing death, highlighting the high level of negligence by CFG Construction1. On December 3, 2019, Judge Bouillon imposed the sentence in this case2.
For sentencing representations, the prosecution argued that a fine of $500,000 was appropriate, while the company considered that a fine of $50,000 with a probation order was sufficient, particularly considering its low financial capacity. As the evidence on this point was seriously flawed, the Court did not consider it valid.
Specifically, CFG Construction claimed that for 2017 the company had sales of $15.6 million and a net profit of $191,000, while in 2018, sales had decreased by $3 million, resulting in a net loss of $101,000.
The Court determined that a fine of $300,000 was warranted with a surcharge of 15%, totalling $345,000. Furthermore, an unusual situation presented itself. In fact, on a mutual recommendation of the parties, a probation order of three (3) years was imposed, coupled with multiple conditions having considerable financial impact.
Among the obligations imposed are:
- Retain the services of an external consultant to assess the situation, propose corrective measures, produce an initial and annual report as well as ensure appropriate follow-up, all under the supervision of the person responsible for monitoring the probation order;
- Train all employees (upon hiring and annually) on the obligations and responsibilities of heavy vehicle users and operators;
- Establish a register of all interceptions and all deviations from the rules relating to heavy vehicles.
It is worth mentioning that the following aggravating factors were considered by the Court in determining the sentence:
- Violations before and after the event: the judge pointed out many convictions or penalties for similar acts under multiple laws, including the Act respecting occupational health and safety, the Act respecting labour relations, vocational training and workforce management in the construction industry, the Building Act and even the Highway Safety Code between 2012 and 2018. In addition, the suspension of the contractor’s licence by the Régie du bâtiment du Québec for 35 days in 2017 was also taken into consideration. In short, for the judge, “a company repeatedly warned by the competent authorities and by the courts that does not make significant changes to its reprehensible and dangerous behaviour compromises social security”3;
- Lack of care following the fatal accident in 2012;
- The financial advantage for the company: any company that benefits from a financial advantage by failing to invest in occupational health and safety measures will necessarily be more severely penalized.
The only mitigating factors taken into account relate to the change of physical location where maintenance and repairs of vehicles and machinery are carried out (the only improvement since the accident) and payment of the premium to the CNESST, workers’ compensation division, because of being subject to a personalized rate regime.
It should also be noted that the media coverage of the case, although it might have been harmful, was considered to be a normal stigma due to the gravity of the alleged facts.
Recommendations and conclusions
We believe that it is important to be aware that any company that pleads or is found guilty of a regulatory offence, regardless of the law, could find itself facing this plea or conviction of guilt in a criminal trial, even when the guilty plea was entered to avoid defence costs, for example. Therefore, if a defence is possible regarding a regulatory offence, it would be appropriate to consider this likelihood.
In addition, it should also be learned from this decision that it is preferable not to skimp on investments that have a direct impact on the health and safety of workers. These investments should be prioritized by companies.
Although CFG Construction may have benefited from a mitigating factor, since it was subject to the personalized rate regime with the CNESST, it is important to know that an employer subject to the unit rate regime would not be eligible for this leniency. Indeed, an employer at the unit rate will not see its contribution modulated due to payment of indemnities to the worker or his/her estate, while employers subject to retrospective or personalized rate regimes suffer financial consequences, particularly due to the fluctuation of their rate.
In closing, note that the conviction has been appealed, and it will be very interesting to hear the opinion of the higher courts on this matter.
1 2019 QCCQ 1244
2 2019 QCCQ 7449
3 See paragraph  of the decision.