Employee convicted of criminal negligence

September 08, 2013 - by: Antonio Di Domenico 0 COMMENTS

By Antonio Di Domenico

On March 22, 2006, B.C. Ferries’ vessel the Queen of the North missed a scheduled turn causing it to run aground and sink off the northern tip of Vancouver Island. Fifty-seven passengers and 42 crew members abandoned ship before it sank. Two passengers were never found and were declared dead.

On May 13, 2013, seven years later, Karl Lilgert, the Queen of the North’s navigation officer, was convicted of two counts of criminal negligence following a four-month jury trial.

The basis for these charges? The expanded scope of criminal negligence under Canada’s Criminal Code, which applies to employers and employees whose negligence causes bodily injuries or death arising out of the performance of their work. Here, it applied to an employee, Karl Lilgert, whose negligence in the performance of his work caused bodily injuries and deaths.

Expanded scope of criminal negligence

The trial of Lilgert is the first criminal negligence jury trial for an individual acting in the course of his or her employment since the enactment of Canada’s Bill C-45. Bill C-45, which came into force March 31, 2004, amended Canada’s Criminal Code to significantly expand the scope of criminal liability for employers and employees.

Bill C-45 supplements existing provincial and federal occupational health and safety legislation. It was intended to make criminal negligence convictions against employers and employees easier to obtain – an objective that, to date, has been met.

In particular, the Criminal Code now imposes a duty on individuals and organizations to take “reasonable steps” to prevent “death” or “bodily harm” to a worker or any other person and makes it a criminal offense for employers and employees to fail to adhere to these duties.

At trial, it was determined that Lilgert was alone on the bridge with helmswoman Karen Briker before the vessel ran aground. Lilgert and Briker had previously had an affair. The Crown pointed to electronic records to show that the vessel didn’t alter course for 20 minutes before the crash. The Crown argued that Lilgert was distracted by Briker shortly before the crash, causing him to be inattentive.

Lessons for employers and employees

There are a number of lessons that Canadian employers, and their employees, should take from the Queen of the North tragedy and its aftermath:

  • Employers and employees across Canada can be criminally liable for their actions on the job. This can lead to significant fines and jail time.
  • Having regard to this risk, investments should be made in health and safety management as well as safety training and prevention.
  • Employers should ensure that all employees are fully aware of their safety obligations and that they are trained and regularly re-trained in this regard.
  • Employers should also ensure that employees adhere to their safely obligations at all times, which includes remedying safety concerns as soon as they are discovered.
About Antonio Di Domenico:
Tony conducts a broad practice in all aspects of corporate commercial, civil and administrative litigation, with particular emphasis on class actions, competition litigation, securities litigation, white-collar crime/quasi-criminal litigation, constitutional litigation, product liability, health law and employment matters.

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