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A recent decision out of the Court of Québec Criminal and Penal Division indicates that directors and supervisors could face jail time where criminal negligence results in a fatal workplace injury. In R. c. Fournier, 2018 QCCQ 1071, the president of an excavation company was found guilty of criminal manslaughter for the death of a worker after failing to follow workplace safety standards. This is an indictable offence under the Criminal Code that carries a penalty of life imprisonment.

The charges arose out of a fatal injury a worker suffered who had been employed with S. Fournier Excavation Inc., of which Mr. Sylvain Fournier was president. Mr. Fournier had been working on site with the worker to replace a sewer line, which required the men to work in an excavated trench that was more than 8 ft. deep. While the men were working in the trench, the trench caved in. The worker was buried and died of a blunt traumatic brain injury, while Mr. Fournier sustained fractures to both legs and was in a coma for two days.

After the accident, CNESST (Québec’s “Committee on Standards, Equity, Health and Safety”) Health and Safety inspectors observed that the trench had not been constructed in compliance with the Québec Safety Code for the Construction Industry (“Safety Code”). The walls of the trench had not been shored and the embankment had been placed close to the edge of the trench, creating a substantial danger of collapse.

Mr. Fournier was charged with two Criminal Code offences: (1) criminal negligence causing death; and (2) criminal manslaughter. Mr. Fournier was convicted on the charge of manslaughter, the more serious charge. The Court found that Mr. Fournier’s conduct constituted a marked departure from the conduct of a reasonable person in the circumstances, and that the risk of bodily harm was reasonably foreseeable. The Court found that the violations of the Safety Code constituted a reckless disregard for the safety and life of the deceased worker, and that Mr. Fournier had shown indifference, detachment and a lack of consideration for the foreseeable consequences of the safety violations.

The decision in Fournier is a tragic example of how neglecting workplace safety can lead to serious injury, or even death. Employers owe a duty to maintain a safe work environment and should strictly adhere to the health and safety requirements ascribed in applicable legislation, such as the Occupational Health and Safety Act in Ontario. Employers must diligently assess potential work-related dangers, and ensure all employees and supervisors are properly trained to identify and avoid such risks.

While Fournier was decided in Quebec, the decision could impact all employers across Canada, as Mr. Fournier was charged under the federal Criminal Code which applies in all Canadian jurisdictions. The decision provides an example of the potential consequences for directors or supervisors who fail to uphold workplace health and safety standards and maintain adequate levels of due diligence.

by: Malcolm MacKillop & Todd Weisberg