Serious or Fatal Workplace Accidents: When Can a Health and Safety Violation Become a Criminal Offence?

Health and Safety Obligations That Go Far Beyond Written Policies

The AOHS requires employers to take the necessary measures to protect the health and ensure the safety, as well as the physical and mental well-being, of workers present at their workplaces. In particular, the employer must identify and control risks, provide safety equipment, adequately inform and train workers, and ensure appropriate supervision. 

When the Criminal Code Comes into Play 

In parallel with the AOHS, the Criminal Code sets out that any person who directs, or has the authority to direct, how work is performed must take reasonable steps to prevent bodily harm to others that could arise from that work. This requirement, commonly referred to as the “Westray Law,” is set forth in section 217.1 of the Criminal Code. 

This obligation may apply to the organization itself, but also to any person who actually directs the performance of the work or who is authorized to do so, including, depending on the circumstances, an officer, manager, foreperson, supervisor or operations manager. 

It is not enough to simply adopt a prevention program or procedures, or to have employees sign training certificates. These measures must be adapted to the actual risks, understood by workers and effectively implemented in the workplace. An organization may thus have a rigorous documentation system in place but still be unable to demonstrate that it has exercised due diligence if the rules are not adequately monitored, are regularly circumvented or are tolerated in practice.  

Due Diligence in OHS: Three Complementary Duties

When it comes to OHS, due diligence is generally based on three complementary duties. 

The Duty of Foresight 

The employer must identify the hazards associated with the work and determine the appropriate preventive measures. This analysis must also account for reasonably foreseeable human errors, production constraints, unusual situations, and shortcuts that may be taken, even by experienced workers. 

The Duty of Efficiency 

The employer must implement concrete risk-control measures, including: 

• clear guidelines;
• appropriate theoretical and practical training;
• suitable and well-maintained equipment;
• adequate supervision;
• control and verification mechanisms; and
• documentation of the work performed. 

Training and the existence of a prevention program do not suffice on their own. The employer must ensure that the measures in place are understood, applied and verified on-site.  

The Duty of Authority 

When a safety rule is not followed, the employer must take prompt action to stop the unsafe behaviour or practice. Depending on the circumstances and the severity of the violation, this action may take the form of refresher training or appropriate administrative or disciplinary measures. 

Tolerating dangerous practices may indicate a lack of rigour in OHS. Conversely, a consistent response, even when no accident has occurred, shows that the employer takes its obligations seriously.

When Can a Workplace Accident Lead to a Criminal Investigation? 

Criminal negligence involves more than just a mistake, a one-time omission or a simple violation of regulations; it requires conduct that demonstrates wanton of reckless disregard for the lives or safety of others. 

In particular, the authorities will examine: 

• the severity and predictability of the danger;
• the degree of control exercised over the work;
• previous warnings, incidents or near-misses;
• the knowledge that the persons responsible for directing or supervising the work had with regard to the hazard in question;
• the corrections that were recommended but not implemented;
• the impact of production requirements and operational constraints on safety decisions;
• the quality of training and supervision; and
• the organization’s response to unsafe behaviour. 

A failure to exercise due diligence does not, in and of itself, lead to criminal prosecution; it may, however, constitute an important element of the analysis when the observed deficiencies, considered individually or collectively, reveal that a serious and foreseeable danger to the lives or safety of workers was known, tolerated or left without adequate corrective action, and that the conduct in question could indicate wanton or reckless disregard.  

Criminal Liability That May Also Apply to Individuals 

Criminal risk does not affect the organization alone; its consequences can also be serious for individuals. For example, in Quebec, a contractor who was personally overseeing a worksite was sentenced to 18 months in prison following the death of a worker who was buried in an unsecured trench. The court also concluded that the elements of criminal negligence resulting in death had been established. Depending on the circumstances, this personal liability may also apply to a foreperson or supervisor who, in the course of the work they direct or supervise, fails to take action in the face of a hazard. 

Serious or Fatal Workplace Accidents: Why Are the First Few Hours Critical? 

Following a serious or fatal accident, the first few hours can have a major impact on administrative and police investigations, as well as on the potential defence of the organization and its representatives. 

In particular, it is important to carefully coordinate internal communications, the identification of witnesses, interactions with the CNESST and law enforcement agencies, statements made to them, and the involvement of experts. In this context, the goal is not to react hastily, but rather to collaborate strategically with the authorities, in accordance with applicable obligations and with full respect for the rights of the organization and the individuals involved. 

Legal Assistance Following a Serious or Fatal Accident 

Prompt legal action makes it possible to assess regulatory and criminal risks, protect the rights of those involved and ensure consistent evidence management. Our team assists employers from the very first stages following a serious or fatal accident to assess their legal exposure, coordinate communications with the authorities and, when necessary, with the media, and then develop a defence strategy adapted to the human, operational and reputational issues involved in the case. 

If you have any questions regarding your organization’s obligations regarding occupational health and safety or the legal consequences of a serious or fatal accident, reach out to Fatme Saleh.