Safety systems on trial: Corporate criminal negligence in R v. J. Cote & Son Excavating Ltd.

On December 11, 2025, the Supreme Court of British Columbia convicted J. Cote & Son Excavating Ltd. of criminal negligence causing death and criminal negligence causing bodily harm arising from a trench collapse on a worksite in British Columbia from 2012. The Court acquitted the site supervisor on all counts, including a manslaughter charge. A sentencing decision is expected mid-April.

The incident and subsequent investigations

The incident occurred on October 11, 2012, during a City of Burnaby sewer separation project on a residential laneway in Burnaby. A retaining wall sat adjacent to the trench. The wall collapsed into the excavation and struck two workers, killing one and injuring another.

The provincial workplace regulator, WorkSafeBC, investigated the incident and released a report about 18 months following the incident. The report concluded that the excavation had removed the soil support in front of the retaining wall, which allowed the wall to rotate and collapse into the trench. It placed primary responsibility on the prime contractor, J. Cote & Son Excavating Ltd. (the Company), finding failures in hazard identification and control as well as in training, supervision and hazard assessment.

Based on its findings, WorkSafeBC provided its file to the Burnaby RCMP for further investigation.

The criminal investigation moved slowly with the Crown only announcing charges against the Company and the site supervisor in August 2023 – nearly 11 years after the incident occurred.

Criminal negligence for workplace incidents

Workplace incident enforcement generally proceeds under federal or provincial occupational health and safety legislation. In British Columbia, for example, contraventions and offences can be pursued for provincially regulated worksites under the Workers Compensation Act and its associated Occupational Health and Safety Regulation. These are known as “public welfare offences” and are quasi-criminal in nature.

To convict for criminal negligence causing death or bodily harm, the Crown must prove beyond a reasonable doubt that:

• A legal duty existed
• The accused breached that duty through an act or a failure to act
• Said breach caused the death or injury and that the conduct amounted to a marked substantial departure from what a reasonable person would have done in the same circumstances

Section 22.1 of the Criminal Code provides a route to criminal responsibility for organizations. Courts can assess the combined conduct of multiple representatives of the Company and ask whether, when taken together, the acts or omissions failed to meet the required standard of care. This allows a conviction based on systemic failures in policies, training, supervision and hazard controls, even where no single individual’s conduct fully explains the breakdown on its own.

While prosecutions under the Criminal Code remain relatively uncommon, this case is a stark reminder that the Crown can bring criminal charges against both individuals and organizations when workplace decision making leads to serious harm – even years after the alleged offence took place.

What led to the conviction in R v. J. Cote & Son Excavating Ltd.

In this case, the Court did not treat the collapse as a random event. Prior to the incident, the Company had retained a professional engineer to inspect a test excavation and issue a geotechnical report certifying entry to excavations, whose report did not assess the adjacent retaining wall but mentioned that all heavy loads should be kept 0.6 meters from the trench.  The Court evaluated whether the Company built and enforced controls that matched the risk of deep trenching beside an adjacent wall.

In reaching its decision, the Court looked at several factors that suggested a marked and substantial departure in the Company’s safety systems:

• Safety manual – The Court found that the Company did not review its safety manual with employees in an effective way before the project. New employees received a manual – and the Company expected them to read it – but the Company did not track completion or comprehension in a formal way. The Court also found that the manual contained outdated content, generic language and internal inconsistencies.
• Training and supervision – The Court found gaps in structured training and verification – specifically that the Company never provided its site supervisor, Mr. Green, with formal training in hazard assessment, trench safety, regulatory compliance or interpretation of geotechnical instructions before the accident. It also found no formal testing, documentation or written guidance before October 2012. The Court also treated weak or missing documentation around safety meetings and daily safety controls as part of an overall failure of safety management, not as a minor paperwork issue.
• Formal hazard assessment process – The Court focused on hazard identification, especially for adjacent walls and structures along the trench line. It found no formal process for assessing those hazards and no continuous reassessment as work progressed and conditions changed. These hazards were found to be foreseeable in the circumstances and the Court said they should have triggered escalation.
• Geotechnical certificate and third-party information – One of the main defendances made by the Company concerned reliance on an engineer’s geotechnical certificate to determine what clearance from the wall was required to work safely. The certificate required that heavy loads remain at least 0.6 meters from the excavation. The supervisor and the Company testified that they understood this setback to include the retaining wall, and that maintaining a 0.6-meter separation meant the excavation remained safe. However, the Court rejected that interpretation and found that “heavy loads” referred to equipment and stored materials, not an existing retaining wall. The certificate did not assess the wall itself or provide any direction about adjacent structures and a reasonable supervisor would have recognized the wall as a separate hazard requiring specific assessment and controls.

The Company’s supervisor was ultimately acquitted as the Crown was unable to prove his errors met the criminal threshold. His conduct was nonetheless part of the overall factual matrix before the Court, which focused on the Company’s failure to implement an effective safety system, ensure proper hazard identification and escalation in high-risk work.

Sentencing principles

Sentencing for criminal offences is governed by section 718 of the Criminal Code, with courts also considering the particular factors set out in section 718.21 when dealing with corporate defendants. General sentencing principles like deterrence and restitution, as well as factors specific to organizations like the cost of the investigation and prosecution, related regulatory penalties or similar past misconduct and/or measures taken to reduce the risk of reoffending are considered. Unlike penalties imposed for failures to comply with the Workers Compensation Act, there is no statutory maximum on what can be imposed on an entity found guilty of criminal negligence. Courts have remarked that a fine must be significant enough that it is not treated as simply a cost of doing business.

In this case, the Crown is seeking a penalty of $1 million, which it says is roughly equal to two years of the Company’s net earnings. The Company has agreed to provide $10,000 for funeral costs and $6,000 for hospital costs associated with the injured worker and proposes a penalty of $345,000 (including the applicable victim fine surcharge). In submissions on sentencing, the Company noted the heavy financial and reputational costs already experienced as a result of the incident.

If the Crown is successful, this would be the highest penalty ever laid in British Columbia for a workplace offence of this nature.

Takeaways for employers

This decision emphasizes the importance of regularly reviewing your safety policies to ensure compliance with regulatory requirements and best practice for the task. Safety procedures must cover both workers and the supervisors who plan and direct the work. Where an organization does not provide supervisors with clear procedures, training and escalation triggers, the organization can face liability for the resulting failures in hazard identification and control. Gaps in a safety system can resurface years later in a criminal investigation and/or prosecution.

The decision also highlights reliance on third party analysis, including engineering reports. An employer may be required to take additional steps where a report is silent or ambiguous on a foreseeable hazard, including seeking clarification, reassessing risk or implementing controls where required before work continues.

For further information, please contact MLT Aikins’ OHS and Emergency Response practice groups. Our experienced team advises employers on developing and implementing due diligence programs that strengthen workplace safety and regulatory compliance. We also represent employers following serious workplace incidents, including regulatory investigations, review and appeal proceedings and prosecutions.

Share