Quebec appellate decision underlines need to implement robust workplace safety measures: experts

Law360 Canada (September 6, 2023, 12:07 PM EDT) -- An appeal by a Quebec City company that was found guilty of criminal negligence causing the death of one of its workers was dismissed by the Quebec Court of Appeal in a “very important” decision that may spur law enforcement officials and Crown prosecutors across the country to be more aggressive and hold to account organizations and decision-makers for workplace deaths, according to legal experts.

In one of the few appellate court decisions in the country that has examined the criminal liability of organizations, the Quebec Appeal Court clarified the use and scope of the so-called Westray bill or Bill C-45, particularly section 217.1 of the Criminal Code; held that any evidence, including circumstantial evidence, during the period preceding the indictment is admissible; and that victim’s statements reported by witnesses is allowed so long as they are used for narrative rather than adjudicative purposes, noted legal pundits.     

In effect since 2004, the Westray bill amended the Criminal Code, and added s. 217.1 which created rules for establishing criminal liability to organizations for the acts of their representatives; establishes a legal duty for all persons “directing the work of others” to take all reasonable steps to ensure the safety of workers and the public; sets out the factors that courts must consider when sentencing an organization; and provides optional conditions of probation a court may impose on an organization.

“It’s a very important decision for protecting workers and because it sends a message to corporate Canada that they need to have a look at their systems to protect workers and make sure they’re sufficiently robust and diligent in that regard,” said Kenneth Jull, counsel at Gardiner Roberts LLP and co-author of Profiting From Risk Management and Compliance.

The ruling should “encourage” law enforcement and legal actors such as Crown prosecutors to take workplace accidents “seriously” and examine employers’ “failings” over anemic or inadequate workplace safety policies and measures, said Amissi Manirabona, a law professor at the Université de Montréal. There has been limited enforcement against organizational offenders since the Bill C-45 came into effect nearly two decades ago even though it is perceived as a notable effort to reform corporate criminal liability in Canada as it expanded the scope of liability significantly, lamented Manirabona, author of Introduction to the law of victims of crime in Canada.

“In the wake of the fatal tragedy at the Westray mine in Nova Scotia, new provisions were adopted to tackle all kinds of negligence in the workplace to make sure this kind of thing never happened again, but 20 years on, we can see that it’s not really being applied,” said Manirabona.

“There are not many cases precisely because there is a problem interpreting the new provisions. The Quebec Appeal Court ruling is important because it is one of a handful of rulings by a higher court that discusses the scope of criminal negligence involving companies.”

The Appeal Court decision is a “clear reminder” that employers must exercise due diligence and adopt a proactive approach when an occupational health and safety issue is reported, said Montreal employment and labour lawyer Katherine Poirier of Borden Ladner Gervais LLP. “This recent decision goes to the heart of the interpretation of section 217.1 of the Criminal Code, which imposes criminal liability on anyone who directs the performance of work to take appropriate measures to prevent bodily harm,” said Poirier, whose practice focuses on workers’ compensation and health and safety.

“Although this section has not yet been applied on many occasions since its adoption, employers should be aware that the consequences of negligence can be far more serious than a simple fine.”

The case began a decade ago when CFG Construction inc was charged in June 2013 with criminal negligence causing the 2012 death of Albert Paradis, a trucker with more than 25 years of experience, who lost control of a heavy-duty truck belonging to the Quebec City company in a curve at the bottom of a sloping forestry road.

In a decision that was rendered before the Supreme Court of Canada issued guidance over the analytical framework for criminal negligence in R. v. Javanmardi, 2019 SCC 54, Court of Quebec Judge Hélène Bouillon found the company guilty after a 25-day trial of criminal negligence causing death because it failed to properly maintain the truck. Evidence at the trial revealed that the truck’s brake system was in an advanced state of wear, with brakes functioning at 53 per cent of their capacity, and that the truck’s mechanical problems were known to the employer. Paradis had repeatedly warned his employer about the dilapidated condition of the truck, and even told another trucker before the accident: “In any case, if I die, you’ll know why.”

Judge Bouillon imposed a $300,000 fine on the company, a 15 per cent victim fine surcharge, and a three-year probation order with several conditions, including retaining the services of an external consultant to evaluate its compliance with laws and regulations to which the company is subject, propose corrective measures, and produce an annual report. The probation order also ordered the company to provide annual training to all employees on the obligations and responsibilities of heavy vehicle users and operators.

The company appealed, arguing that the verdict was unreasonable, that hearsay evidence adduced during the trial was inadmissible and that inadmissible evidence of propensity was introduced during the trial. In a 48-page decision in CFG Construction inc. c. R., 2023 QCCA 1032, issued on Aug. 11, the Quebec Court of Appeal dismissed the appeal, pointing out that “the case law interpreting these new provisions … was not abundant at the time of the trial and has not become much more so since.”

The Appeal Court noted that the trial judge’s interpretation of the Westray law was based on a ruling by the Quebec Court of Appeal itself in Javanmardi that in turn was overturned by the Supreme Court of Canada. At the time the Quebec Appeal Court held that the prosecution had to show an actus reus that indicated reckless or wanton disregard and that revealed a marked and significant departure from the reasonable person standard. The standard of fault used by the trial judge in her analysis turned out to be “largely favourable” to the appellant because she had engaged in the same exercise on two occasions, that is, when assessing the appellant’s conduct from the standpoint of both the careless and reckless nature of the maintenance and the marked and significant departure.

But the Supreme Court held in Javanmardi that the assessment of the act or omission revealing a wanton or reckless disregard for the lives or safety of other persons resides in the fault and not the actus reus, noted the Appeal Court. “Wanton or reckless conduct is a marked and significant departure in relation to the standard of a reasonable person,” said Justice Guy Cournoyer in reasons that both Justices Marie-Josée Hogue and Geneviève Cotnam concurred with. “These are not two separate standards, as the Supreme Court recalled in Javanmardi.”

“The Court of Appeal doesn’t shed much new guidance but clarifies the use of s. 217.1 of the Criminal Code,” remarked Jull. “Section 217.1 doesn’t create an offence in and of itself.” Rather, explained Jull, it expressly imposes a duty on a person directing the work of another person to take reasonable steps to “prevent bodily harm arising from that work or task.” That duty is then coupled with s. 22.1 of the Criminal Code, which provides that any “representative” of the organization could cause it to incur criminal liability if the representative is a party to the offence, or two or more of its representatives engage in conduct, whether by act or omission, “such that it had been the conduct of only one representative” does not fulfil their duty to supervise the work. Section 22.1 also sets out an additional standard of care that organizations must follow to avoid liability, noted Jull. Under s. 22.1 the senior officer responsible for the relevant aspect of the organization’s activities must ensure that the organization does not depart markedly from the standard of care that would reasonably be expected to prevent a representative from committing a crime.

In this case, said Jull, the company’s lack of professionalism and rigour met the high test in s. 22.1 of a marked departure from the standard of care that could reasonably be expected. The degree of departure from the manner in which a reasonably prudent person would have acted in the circumstances reveals a continuum of negligence that is “far from the temporary or occasional carelessness” that could result in civil liability. “It is rather at a higher level, that is, a marked and significant departure involving both the physical and moral elements.”

The Appeal Court also dismissed contentions by the appellant that the prosecution introduced evidence of propensity such as the general condition of the machinery, its maintenance and repair, safety in the workplace and the condition of the premises. Any evidence of the appellant’s negligence in maintaining the truck driven by the victim during the period covered by the charge of criminal negligence — between February 2012 and September 2012 — was “clearly” admissible, held the Appeal Court.

“Moreover, circumstantial evidence of the same nature during the period preceding that covered by the indictment was also admissible insofar as it could demonstrate knowledge of the problem affecting the maintenance of the truck and its brakes, including the means used to solve it,” added Justice Cournoyer.

“Conceptually, the analytical framework surrounding the admissibility of similar fact evidence is totally inadequate, as it is fundamentally ill-conceived for the assessment of negligence or lack of due diligence. Indeed, a crucial foundation for the admissibility of similar fact evidence is the establishment of the improbability of coincidence, a question that is entirely irrelevant to the assessment of negligence.” But Justice Cournoyer, sharing the view issued by legal scholars, added that it is wrong to characterize evidence relating to due diligence as evidence of propensity. Endorsing observations made by legal scholars, Justice Cournoyer said that past incidents may inform first and foremost the question of foreseeability.

“Evidence of propensity is generally inadmissible, but in the context of negligence, although it’s not really a determining factor in whether you’re found guilty or charged, it can still be added to other evidence, added to other material evidence to prove the degree of failure, the lack of diligence on the part of the employer,” noted Manirabona. “Even if, generally speaking, it can pose a problem in other circumstances like when the accused is an individual, I’m comfortable with” the Appeal Court’s position.

Jull also subscribes to the Appeal Court’s stance on evidence of propensity. “It’s an interesting point, and I think they’re right,” said Jull. “When you're talking about organizational criminal liability and the standard of care and what they knew before, then that goes to the issue of the extent of the due diligence systems that they had. It goes to whether or not there was a marked departure from the standard of care because it informs,” said Jull.

The issue of hearsay evidence was also raised by the appellant, who objected at trial to the admissibility of the victim’s statements reported by witnesses at the trial. The prosecution presented hearsay evidence relating primarily to the victim’s state of mind, the problems with his truck’s brakes, the advice given to the employer on the subject and the fact that the victim had been stopped by roadside inspectors while driving the truck.

The trial judge admitted evidence of certain statements under the “traditional exception” of the victim’s state of mind and others under the hearsay method of reasoned analysis. Quebec Appeal Court Justice Cournoyer found that the victim’s statements were considered by the judge “primarily for narrative and not adjudicative purposes,” as the evidence was not presented to establish the truth of the “content” of the victim’s statement, that is, the poor mechanical condition of his truck and its brakes. There was “ample” evidence, added Justice Cournoyer, to establish that the appellant was negligent in maintaining the mechanical condition of the truck.

“I was surprised that these statements were used, because victim impact statements are usually used in sentencing,” said Manirabona. “The Court of Appeal said this was correct because it was essentially done to clarify the facts, that it wasn’t used to convict the accused. But there’s a fine line. Because it’s clear that in one way or another, it could possibly influence the judge. As I’m in favour of victims’ rights, for me this is an excellent thing, but it’s curious all the same.”