BC Court Of Appeal Upholds Personal Liability For Director Of Mining Company For Regulatory Offences

The BC Court of Appeal released its decision in R. v. Mossman, 2026 BCCA 75, upholding the BC Supreme Court's decision confirming that a director, officer or agent may be personally liable for strict liability regulatory offences under the Environmental Management Act and the Fisheries Act (collectively, the "Acts").

The underlying investigation into a gold mining site near Prince Rupert, British Columbia led to regulatory charges against the director, president, and chief operating officer of the company and the designated 'mine manager' under the Mines Act.

The accused was charged with several offences under the Acts, which the Court divided into three categories:

1. Failing to report environmental spills and dumping (the "Failure to Report Offences");
2. Discharging mine waste into the environment (the "Dumping Offences"); and
3. Discharging substances in concentrations exceeding permitted amounts (the "Exceedance Offences").

The offences at issue provided for liability in two ways:

1. Primary liability – liability of the party who committed the offence;
2. Secondary liability – liability of the director, officer, agent who directed, authorized, permitted or acquiesced to a company's commission of the offences.

The accused's initial appeal at the BC Supreme Court centered largely around whether there was a requirement for the Crown to prove mens rea (intent, or knowledge of the circumstances of the offences), in order for him to be convicted of secondary liability in respect of the Exceedance Offences. He argued that because there had been no finding that he knew about the circumstances of the exceedance and did not react, he could not be convicted.

The court disagreed and held that, under the Acts, the accused may be held liable despite having no knowledge of the circumstances surrounding the offence. Please refer to the Global Mining Bulletin by Gavin Cameron dated April 2, 2024 for further details.

The Arguments and Outcome on Appeal

The single question on appeal was whether the secondary liability provisions under the Acts require the Crown to prove that the accused knew of the circumstances surrounding the commission of the offences. The court held that the Crown does not bear this burden in strict liability offences.

The court confirmed that strict liability offences do not require a mental element to secure a conviction and cautioned that those who choose to engage in regulated activity accept responsibility for exercising reasonable care to ensure harm does not occur.

The accused argued, unsuccessfully, that secondary liability provisions should not be interpreted so broadly as to impose presumptive liability on an officer, director or agent of a company who is unaware of the company's conduct leading to the commission of the offence. Such an interpretation, he argued, would cause significant injustice given the heavy penalties and the nature of the legislative scheme.

The court was not persuaded.

Instead, the court concluded that liability will be established where the Crown: 1) proves the company's commission of the offences; and 2) proves an additional element of the accused's active or passive involvement in those offences given the nature of their responsibilities as an individual. The court noted that:

The additional actus reus component focuses on the accused's voluntary assumption of responsibility to control the foreseeable harm that may result from the regulated activity and their failure to ensure that it does not come about. Accordingly, the nature of the company's breach must be logically connected to the scope of the accused's voluntarily assumed responsibilities.

Key Takeaways

Directors, officers, or agents may not be able to rely on lack of knowledge to avoid liability for strict liability offences when that offence is within the nature of their responsibilities.

The case illustrates the importance for those in leadership roles to ensure that their organizations are taking appropriate steps to maintain compliance with regulatory requirements.

In addition to the Acts at issue in this case, other statutes contain similar secondary liability provisions, including the Mines Act and Forest Act in British Columbia. Regulatory investigators and the Crown may be more inclined to lay charges against individuals arising from this precedent.

While not at issue in this appeal, due diligence may still provide a full defence to strict liability offences whether that liability is sought through primary liability or secondary liability.

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