The Court of Quebec recently delivered an apparent win for worker's rights and workplace safety in R v Fournier. Here, Sylvain Fournier, owner and operator of S. Fournier Excavations, was convicted of manslaughter in the death of one of his employees, Gilles Levesque, and sentenced to 18 months in prison. The decision is notable as it represents the first time that an employer has been found guilty of manslaughter – a crime carrying the possibility of life imprisonment – as a result of a breach of provincial safety legislation.
The decision takes seriously workers' health and wellbeing and sends a strong message to employers who treat workplace health and safety lightly. At the same time, however, the decision does not limit criminal liability to employers but leaves open the possibility of liability to all those who have duties to prevent and mitigate workplace health and safety risks under applicable health and safety legislation.
The Facts
In April 2012, Mr. Fournier and Mr. Levesque were tasked with replacing a residential sewer pipe. The work required that they excavate deep into the earth in order to access and replace a sewer pipe connecting the residence to the street. In the course of their work, both the north and south flanks of the trench collapsed, burying Mr. Levesque under the rubble and trapping Mr. Fournier's legs. It took a special rescue team 3 hours to pull Mr. Levesque's body from the rubble. He was found to have died of a blunt traumatic brain injury. Mr. Fournier suffered fractures to both his legs.
The Decision
At trial, the Court found Mr. Fournier in violation of section 3.15.3 of the Quebec Safety Code for the Construction Industry ("Code"), which requires that an employer "ensure that the banks of an excavation or trench are shored solidly with quality materials in accordance with the plans and specifications of an engineer." Indeed, inspectors with CNESST – Quebec's Health and Safety Commission, fulfilling a role similar to the Ontario Ministry of Labour in this context – testified to the Safety Code's requirement that excavations over 4 feet deep be shored. The trench in this case measured 8 feet deep and 42 inches wide. Its walls were dug at 90-degree angles, increasing the danger of collapse, and were not reinforced with any shoring system. Moreover, excavated rubble had been placed close to the top edge of the trench, increasing pressure to the trench walls, when the Safety Code explicitly requires that such rubble be placed at least 1.2 m from the trench line.
Manslaughter
The Court explained that manslaughter requires a finding that a person performed an unlawful act that (1) causes death, (2) is objectively dangerous, and (3) for which risk of harm is foreseeable in the circumstances.
The Court held that a violation of the Safety Code could constitute the "unlawful conduct" needed for manslaughter. Here, the Court relied on an earlier decision of the Quebec Superior Court, which established that a Safety Code violation, as an infraction for which strict liability is imposed, may support a manslaughter conviction where, in addition to the three requirements listed above, the accused's unlawful conduct constituted a marked departure from the standards of a reasonable person.
The Court found that:
- in disregarding the Safety Code's requirement, Mr. Fournier performed an objectively dangerous unlawful act that caused Mr. Levesque's death;
- the risk of harm was foreseeable in the circumstances; and
- Mr. Fournier's disregard of the Safety Code's basic safety provisions constituted a marked departure of the conduct of a reasonable person.
As such, Mr. Fournier was found guilty and convicted of manslaughter.
The Takeaway
Whereas employers have been previously held liable for workplace accidents under the Criminal Code's negligence provisions, this case represents the first prosecution and conviction of an employer for manslaughter, a crime that carries the possibility of life imprisonment. As such, this decision tracks increased public concern for workplace health and safety, as represented, for example, in amendments to Ontario's Occupational Health and Safety Act ("OHSA") in Bill 168 which expanded employer and employee duties with respect to workplace violence.
Under OHSA, any person who contravenes an OHSA provision may be found guilty of an offence and may found liable to a fine of up to $100,000 or to imprisonment for a term of not more than 12 months. Moreover, R v Fournier shows that if a person is found to have violated OHSA and someone dies as a result, that violation could be used to establish a manslaughter conviction. However, in these circumstances, the Crown would have to prove that the person's conduct constituted, not only a breach of a health and safety standard, but also a marked departure from that standard.
Although employers have more control over dangerous conditions in the workplace, and are held responsible for OHSA violations on that basis, employees have duties under OHSA, too. As such, it is important for workers in safety sensitive workplaces to be aware of these duties and be vigilant about compliance.
For example, workers are obligated to report to his or her employer or supervisor when they don’t have the protective devices or equipment they need or the equipment they have is defective to the point that they or their co-workers may be in danger. OHSA also prohibits workers from working or using or operating equipment in a way that may endanger themselves or other workers. Workers should know that they may have the right to refuse work where they have reason to believe that equipment, machinery or workplace conditions are such that workers are likely to be endangered.
Taking reasonable efforts to report and correct workplace safety hazards is not only required under OHSA but is also a smart way to avoid workplace injuries and their legal repercussions.
For more questions about workplace health and safety standards, reach out the any of the lawyers in our Occupational Health and Safety practice.
Author: Deborah Guterman, Student-at-Law