ESG Enforcement Tracker

The Court of Appeal of British Columbia has confirmed that company executives can be held personally liable for breaches of environmental statutes.

A British Columbian trial court found Benjamin Mossman, director and officer of a British Columbian mining company, Banks Island Gold Ltd, guilty of secondary liability, in respect of offences committed by the company in discharging more than the permitted amount of zinc and other metals, without adequate ongoing monitoring. He was acquitted of other offences, including a failure to report the discharge. The offences are strict liability offences, placing the burden on the accused to prove that he took all reasonable care. The defendant appealed his convictions, and the prosecution appealed the acquittals. In 2024 the British Columbia Supreme Court upheld the convictions and sent the acquittals for re-trial.  The defendant appealed the Supreme Court order to the Court of Appeal to avoid a retrial.

The British Columbia Court of Appeal rejected the argument that an officer, director or agent of a corporation could only be liable for environmental offences committed by the corporation when the officer, director or agent can be proved to have had personal knowledge

The Court explained that the Environmental Management Act and Fisheries Act create strict liability offences because they are regulatory statutes aimed at protecting the public and the environment. This means that the prosecution does not need to prove intent or knowledge – only that the harmful event occurred. Both statutes also contain provisions for secondary liability (holding directors, officers, or agents responsible). The court found nothing within the statute or caselaw that would add a mental element or displace strict liability principles.

The Court confirmed that in cases of strict liability, the prosecution only needs to prove that the corporation committed the offence, that the accused was involved, actively or passively, in the commission of the offence and the nature of the breach was logically connected to the accused’s assumed responsibilities to prevent foreseeable harm.