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J. Cote & Son Excavating has been ordered to pay $575,000 in fines and victim surcharges after being found guilty under the Criminal Code of Canada of criminal negligence causing injury to one employee and the death of another in a 2012 trenching accident.

The case centres on the company’s failure to have proper safety procedures, employee training and oversight in place while employees were working in a high-risk situation.

The Burnaby incident occurred when a retaining wall toppled into the trench, killing pipefitter 28-year-old Jeff Caron and seriously injuring co-worker Thomas Richer. J. Cote & Son had been hired by the City of Burnaby to carry out a sewer separation project on a residential laneway.

J. Cote & Son will also pay $6,246.25 in restitution to Richer, who sustained severe injuries and had to pay out-of-pocket medical costs during rehabilitation. The crown had earlier asked that Caron’s $10,000 funeral expenses should be covered in restitution costs as well but prior to the beginning of the sentencing hearing, prosecutor Louisa Winn, K.C. said she had been informed WorkSafeBC was reimbursing the family. The crown had originally asked for a $1 million dollar fine – one of the highest fines laid against a company in B.C. – while the defense asked for $345,000, which included the victim surcharge.

Justice Michael Brundrett did not go with either recommendation. He did not feel the high fine was justified for several reasons. He said this was the company’s first time in court, there was the impact of the December conviction on the company’s revenue and reputation, the 70 to 80 employees to consider, but also, since the 2012 incident, J. Cote had implemented a rigorous safety program.

J. Cote & Son now holds a Certificate of Recognition issued by WorkSafeBC, one of the highest safety standards that can be issued to a company.

“It is a very different company today than it was at the time of the incident,” he said.

At the same time, he did not honour the defense’s request for the lower fine, saying the fine needed to be large enough to serve as a deterrent.

“The province has seen more than its share of preventable industrial accidents,” Justice Brundrett said, pointing to the construction and excavation industries.

He explained he wanted senior managers to know it was their responsibility to ensure worker safety. While there was “some ambiguity” in the engineer’s certificate that indicated the trench

was stable under certain conditions, it rested with senior managers to check over the engineer’s assessment.

“The representatives of J. Cote markedly and substantially failed in their duty to respectfully acknowledge, interpret and clarify the scope authorized in the certificate,” Justice Brundrett said, adding senior management and supervisors must carry the responsibility for this failure. “J. Cote had a duty to follow up in any ambiguity in the certificate.”

The justice said instead “expediency over safety” was chosen as the trench work, which is known to be high risk, went ahead.

He spoke about the human cost in this incident as Caron “had much of his life before him” and was a First Nations Cree who had been separated from his siblings in childhood and placed in foster care.

After many years, these siblings were starting to reconnect again with one another and that opportunity for Caron and his siblings would now never be fulfilled. These tragedies impact not only the individuals but the families and friends, he said.

Defense lawyer William Smart, K.C., upon hearing the fine’s sum asked that it be broken into annual instalments with the first $115,000 to be paid in May 2027. He cited the company’s financial setback since the conviction but said it would pay the restitution to Richer within 60 days.

“I accept J. Cote’s submission that it has had difficulty obtaining contracts since its conviction,” Justice Brundrett said, approving the instalments to be paid over a five-year period with each instalment made in May.

The crown and defense has 30 days to review Justice Brundrett’s sentence and appeal the ruling.

The fine is not the largest that has been handed down to a construction company in Canada, although it is among the higher regulatory fines given out by WorkSafeBC in the province.

J. Cote is the first B.C. criminal negligence case involving construction to go to a full trial and the third company to be charged under the code. Of the two others, one saw a guilty plea entered to the charge, while in the second case the charge was stayed following the death of a witness