Can managers and supervisors be convicted criminally for OH&S failures?

A January 2025 Court of Appeal decision in the New Brunswick case of R. v King, 2023 NBKB 84 (CanLII), https://canlii.ca/t/jzk0w confirms the criminal liability managers and supervisors can easily face if they fail to take care for the health and safety of workers.

In King, the accused became a construction supervisor in 2018 but received only some training.  During the construction of a wastewater treatment tank, King failed to read safety manuals and instructions provided for installing a tank plug, failed to implement confined space safety procedures, and failed to inform workers when a leak test was starting.  A young construction worker died as a result.

In 2023, the Court of King’s Bench convicted Mr. King of criminal negligence.  On January 23rd, 2025 the Court of Appeal upheld Mr. King’s conviction.  Some cautionary points for managers and supervisors to take away from the case include:

1. An articulation of the legal test of what the Crown must prove to establish criminal negligence is set out in R. v. Sillars, 2022 ONCA 510 at para. 71 and cited in King:

 On a charge of criminal negligence, the Crown must show that the accused’s act or omission represented a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances and that this act or omission demonstrated a wanton or reckless disregard for the lives or safety of other persons: see R. v. J.F. 2008 SCC 60, [2008] 3 S.C.R. 215, at paras. 7-10; R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 61. In a criminal negligence case the Crown must prove either that the accused was aware of the obvious risk to the lives and safety of others but went ahead anyway or gave no thought to that risk. (Emphasis added)

 2. The modified objective test for criminal negligence requires a marked departure from the standard of care expected of a reasonably prudent person. This test considers both the actus reus and mens rea, where the conduct must be objectively dangerous, and the accused's mental state must show a marked departure from the norm. The test is contextualized, allowing for defences such as incapacity or mistake of fact.

 3.    It is incumbent on managers and supervisors to be aware of the requirements to perform their work safely:

“Furthermore, it is not a defence, the Crown asserts, to argue that Mr. King was not trained and did not know his obligations. That is why, the Crown argues, we rely on the ‘modified objective test’ to examine the conduct of the accused. This is a point highlighted in R. v. Doering, 2022 ONCA 510 (leave to appeal refused). Essentially, the point is that, while it is useful to examine the accused’s own experience, it is an error to rely solely on that experience when determining where the general standard of conduct should be set. If that was the case, the applicable standard would be undefinable.”

4.   The modified objective test is involves requires a “marked and substantial departure” from the norm of a reasonable supervisor and expert evidence is not necessarily required to prove this.  While expert witnesses were called by the Crown regarding particular aspects of Mr. King’s conduct, no expert evidence was called regarding a reasonable supervisor’s approach to the circumstances:

“66.  This expert evidence provided the trial judge with the necessary framework to assess whether Mr. King’s actions aligned with the expectations of a site supervisor managing such hazards. The trial judge concluded that additional expert evidence was unnecessary because the risks were evident to any reasonable person. Mr. Sgrosso and Mr. Daneff’s testimonies established that a basic understanding of workplace safety (specifically the danger of a plug coming loose in a confined space) would alert a responsible site supervisor to implement precautionary measures, or, at the very least, double check the confined space where Michael Henderson had been known to be working, before performing the leak test.”

5.     “Common sense” (12 references), “self-evident” (4 references), and “obvious” (8 references) were all considerations made by the Court in respect of Mr. King’s failures.