Case In Point
Criminal Negligence Convictions Following Workplace Fatality Send Clear Message to Employers
Date: April 2, 2026
R. v. J. Cote and Son Excavating Ltd., 2025 BCSC 2540, a recent decision of the British Columbia Supreme Court, serves as a stark reminder that workplace safety failures can give rise to criminal liability for employers. In this decision, an employer was found guilty of criminal negligence causing death and criminal negligence causing bodily harm following a trench collapse on a municipal infrastructure project that left one worker dead and another seriously injured. The site foreman was acquitted of criminal negligence and manslaughter.
For employers, the decision underscores a critical point: criminal liability can flow from systemic, organizational safety failures at the senior‑management level, even where no individual supervisor is found criminally responsible. The case highlights the heightened scrutiny courts will apply to safety governance, hazard identification, risk assessment, and reliance on third‑party professional certification in high‑risk work environments.
Background
The case arose from a 2012 trench collapse during a sewer replacement project in Burnaby, British Columbia. The excavation occurred immediately adjacent to an unreinforced retaining wall with no footing, tiebacks, or rebar. Although the wall stood for decades, its collapse was triggered by the excavation, causing the death and serious injury.
Criminal Code charges were laid against both the employer and the site foreman. The employer was convicted of criminal negligence causing death and criminal negligence causing bodily harm. The foreman was acquitted of all criminal charges.
Decision
Reliance on Engineering Certificate
A central issue in the case was the employer’s reliance on an engineer’s geotechnical certificate that certified an initial trench location as safe for entry without shoring, subject to a requirement that “heavy loads” be kept 0.6 metres from the trench edge.
The Court found that reliance on the certificate was objectively unreasonable. The engineer inspected only the initial trench location and did not assess adjacent structures, including the retaining wall. The certificate did not define “heavy loads,” and the employer unilaterally interpreted that term to include retaining walls without seeking clarification.
Critically, the Court emphasized that ambiguity in professional advice cannot be used as a shield. Where an engineering document is silent on a known or obvious hazard, a reasonable employer must stop work and obtain clarification or site‑specific approval. Proceeding in the face of ambiguity was a marked departure from the standard of care.
The Court also made clear that engineering advice does not displace an employer’s statutory obligations. Even with a certificate in hand, the employer retained independent duties under occupational health and safety legislation. An engineer cannot waive those duties, and a certificate that fails to address a critical hazard cannot override regulatory requirements. As the Court put it, the employer “retained ownership of the risk” created by the work it directed.
Systemic Safety Failures
The employer’s conviction was not based on a single error or momentary lapse. Rather, the Court found a pattern of systemic safety failures embedded in the organization’s operations and governance.
The employer relied on a 1997 safety manual that had not been meaningfully updated, was informally distributed, and was not implemented in practice. Although the manual purported to require written orientations, toolbox meetings, inspections, hazard assessments, and checklists, these measures were largely undocumented or not carried out at all. Safety records, training logs, and inspection forms were absent or incomplete.
The Court rejected the notion that having written policies on paper was sufficient. In a high‑risk environment, policies that are outdated, unenforced, or disconnected from day‑to‑day operations do not constitute a functioning safety system. The failure to operationalize safety documentation was treated as a failure of safety governance and contributed directly to the finding of criminal negligence.
Failure to Identify and Assess Foreseeable Hazards
The Court was particularly critical of the employer’s hazard identification and risk‑assessment processes. Hazard assessment was left largely to individual judgment in the field and to reliance on the geotechnical certificate. There were no formal hazard‑assessment tools, checklists, or standardized processes, and no proactive mechanism for identifying new or evolving risks as the work progressed.
The retaining wall was a foreseeable hazard. Its close proximity to a deep excavation and visible indicators of instability should have triggered a focused risk assessment. The employer’s failure to proactively identify and address this risk was a key component of the Court’s finding that the employer’s conduct represented a marked and substantial departure from the standard of care.
Training, Supervision, and the Forman’s Acquittal
The Court found that training and supervision were informal, undocumented, and inadequate. Supervisors and workers received no formal training in trench safety, hazard identification, regulatory compliance, or the interpretation of geotechnical certificates. Training was largely experiential, with no testing, verification, or documentation of competency.
The Court drew a distinction between organizational responsibility and individual culpability. While the employer was convicted based on the collective failures of its senior officers, the foreman was acquitted. The Court found that the foreman’s conduct fell short in several respects; however, the court did not find beyond a reasonable doubt that it was a “marked and substantial” departure from the conduct of a reasonable supervisor. The evidence did not establish that his conduct met the threshold for criminal negligence. Significantly, criminal liability turned on senior‑level systems, oversight, and governance, rather than on front‑line supervision.
Post‑Incident Improvements
After the fatality, the employer shut down operations, retained a safety consultant, implemented structured training, improved documentation, and revised its safety manual. While the Court acknowledged these steps, this did not assist in demonstrating that the employer had adequate systems in place before the incident.
Key Takeaways
This decision sends a clear message: workplace safety failures can escalate into criminal exposure where risks are foreseeable and systemic safeguards are absent. To avoid such liability, employers are encouraged to ensure that their senior officers:
- take a proactive approach to safety governance (e.g., up-to-date safety manuals, effective safety meetings, adequate training and supervision)
- adopt proactive hazard identification and risk assessment practices
- critically analyze professional certification or other forms of professional advice to detect and correct any ambiguity
Courts will assess the collective conduct of an employer’s senior officers to evaluate whether it is consistent with the required standard of care in the circumstances. If a court finds that their conduct is inconsistent with this standard, it may be characterized in the event of a fatality as demonstrating a reckless disregard for the lives and safety of the employer’s workers, and be enough to establish the employer’s conviction for criminal negligence causing death and bodily harm.
For assistance with occupational health and safety matters, consult Nadine S. Zacks, Anoushka Zachariah or any member of our Occupational Health and Safety group.
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