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Criminal charges against Vaughan firm may set precedent: lawyer

What happens when a private company faces criminal charges?

Thursday’s announcement that Barrie police had charged a Vaughan private construction company with six counts of criminal negligence causing death in last summer’s devastating crash on McKay Road could serve as a legal precedent in the country, according to one lawyer.

Condrain Company (1983) Ltd. is the company doing construction along that stretch of road, between County Road 27 and Veterans Drive, as part of large-scale residential development in the city’s south end. The criminal charges fall under Section 220(b) of the Criminal Code of Canada.

The August 2022 crash claimed the lives of Haley Marin, Curtis King, Luke West, Jersey Mitchell, River Wells and Jason Ono-O’Connor, all of whom were in their early 20s. According to a family member of one of the victims, the car they were in plummeted into a deep, concrete hole — referred to by the city as a “tunnel access shaft” — and then caught fire.

On Sunday, Aug. 28, while conducting a missing persons investigation, police officers checked the construction zone and located a vehicle in a large hole in the middle of McKay. Investigators determined the deadly collision happened sometime shortly after 6 a.m. on Saturday, Aug. 27, 2022. 

According to the Condrain website, the company was founded in 1954 by brothers Alfredo, Antonio and Angelo De Gasperis. It began as a small concrete and drainage contractor, which is where the name Condrain originates from, and in the last 69 years has grown into land development, property management, aggregates supply and other subsidiary companies.

Cheryl A. Edwards, a partner at Mathews Dinsdale & Clark LLP, provided clarity on situations when a private company faces criminal charges, and not individuals, and how that would work in the courts when it comes to potential liability and responsibility.

Edwards couldn’t speak to the Condrain case specifically, but she did say it is a unique situation.

“The very first thing you would want to do is get a copy of the charges because there could actually also be charges against an individual. That sometimes happens when a company is charged,” Edwards said. 

Barrie police communication co-ordinator Peter Leon confirmed, at this time, only the company is facing charges.

Edwards also cited the amendment to Bill C-45 (2003), which addresses the criminal negligence of a company.

“Criminal intent would have to be found on the part of the corporation, and since a corporation is just a business on paper, the Criminal Code has this mechanism of determining whether someone who was a representative of the business committed criminal negligence and then if the company did anything to stop it,” Edwards said.

She cited the 2009 Metron Construction tragedy where four workers were killed and another employee suffered serious injuries after their swing stage scaffold broke, falling 13 storeys during repairs at an apartment building in Rexdale, Ont., on Christmas Eve.

“In that case, it was the same charges under the Criminal Code, but they were also charged under the Occupational Health and Safety Act (OHSA),” Edwards added. “How police charged them was based on the actions of a project manager who was on the site.”

The court found that victims had no protection in case of a fall while the project manager was on site.

“In that case, the actions of the manager were seen to constitute criminal negligence for the corporation," she said.

The project manager in that case was found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm and, despite an appeal, was sentenced to three-and-a-half years in jail.

Edwards said if a company is found guilty of the charges of criminal negligence causing death, “there is no limit to the amount of penalty that can be imposed under the Criminal Code.”

“But there is no jail. It would be a potential penalty that has no precedent in Canada,” she added.

Edwards also explained that other types of penalties could be imposed if a company is convicted.

“We do have examples of companies being charged, for example, if they allow their rigs to drive on the roads with not-up-to-code brakes. Those fines can be in the millions,” she said. “But we don’t yet have a very significant fine against a company for these charges.”

With regard to potential penalties, the Criminal Code states should a company or person be found guilty of such charges, “a maximum penalty of life imprisonment for an individual, in the case of an organization, a fine in the discretion of the court.”

According to the Condrain website, the company has anywhere from 501 to 1,000 employees.

Despite being one of the largest companies of its kind in Canada, Condrain continues to be family-owned and -operated with official incorporation records listing Jim De Gasperis as president, Angelo De Gasperis as vice-president, and Antonio De Gasperis as secretary and treasurer. The CEO is listed as Sam Balsamo.

Edwards added there could also be charges laid against a corporation or individual under the OHSA any time up to two years from the date of an incident.

“Essentially, if that happens those two proceedings could run parallel or one could run first and the other after. The police are usually pretty confident that they have significant evidence when they run their charges, so it will be interesting to see," she added.

Condrain has not responded to a request for comment on the charges against the company.

The Ministry of Labour, Immigration, Training and Skills Development did not respond to requests for comment on this story.

BarrieToday contacted the City of Barrie, asking what role it plays in construction projects occurring on city property, and if it is involved in safety checks and site visits. Additionally, the city was asked what its involvement has been with the current investigation.

“The city has co-operated fully with Barrie police with respect to all aspects of their investigation into this tragic accident,” CAO Michael Prowse wrote in an email. “The city is not privy to the results of their investigation and, as charges have been laid, it is inappropriate for us to comment further on any aspect of the incident.

"In the meantime, work continues on-site pursuant to the applicable contracts to complete this project," he added.

Condrain is scheduled to appear in Barrie court on Feb. 13. None of the allegations against the company have been tested in court.