“[Requiring the Crown to prove actual knowledge or intent of an offence] would undermine the object of the [strict liability] schemes and, effectively, allow officers, directors and agents to avoid secondary liability by remaining wilfully blind to foreseeable risks and remove the incentive to ensure safe operations to avoid those risks” (R. v. Mossman, 2026 BCCA 75, at para. 71.)
The BC Court of Appeal’s decision in R. v. Mossman, 2026 BCCA 75, expands the potential for ‘secondary’ or ‘personal’ liability for officers, directors, and supervisors in the context of regulatory prosecution. The Court found that an individual who voluntarily assumes responsibilities in a company acting in a regulated industry can be found personally liable for contraventions by the company, whether or not the individual knew of or was involved in the activities leading to the contravention.
The case relates to the secondary liability provisions of the Environmental Management Act and the Fisheries Act, but will be relevant to all regulated industries where such secondary liability provisions occur.
Case Background
The decision is the latest in a series of court decisions related to environmental contamination at Banks Island Gold Ltd.’s (BIG) Yellow Giant Mine sites on Banks Island, near Prince Rupert, BC. Mr. Mossman was a director, president, and chief operating officer of BIG and the designated mine manager for the Yellow Giant Mine.
In 2014 and 2015, a series of discharges – both intentional and unintentional – at the Mine led to charges against Mr. Mossman and another officer under the Environmental Management Act and the Fisheries Act, specifically related to: failing to report environmental spills and dumping, discharging mine waste into the environment, discharging substances in concentrations exceeding permitted amounts and unauthorized works in and about a stream. The company was not charged.
At the original trial, Mr. Mossman was convicted on two counts (failing to report a spill under s. 79(5) of the Environmental Management Act, and failing to report the deposit of a deleterious substance under s. 38(5) of the Fisheries Act) but acquitted of other charges. The Crown appealed the acquittals to the BC Supreme Court, and Mr. Mossman appealed the convictions. The summary conviction appeal judge ordered a new trial, finding that the trial judge had erred in excluding some portions of evidence and in admitting others.
On retrial, Mr. Mossman was convicted with respect to the charges related to discharging substances in concentrations exceeding permitted amounts, but the other charges were dismissed (all charges against the other officer were dismissed). Both the Crown and Mr. Mossman appealed. The conviction was upheld on appeal, while the dismissals against Mr. Mossman were overturned on appeal, and a new trial was ordered. Mr. Mossman appealed, leading to the most recent decision.
The appeal addressed whether the secondary liability provisions under these Acts required the Crown to prove an accused was involved in or aware of the circumstances surrounding the company’s commission of the charged offences. The Court held that the charges in question were strict liability offences, and therefore did not require proof that the accused was involved in or knew of the circumstances surrounding the offence.
Secondary Liability
The secondary liability provisions in the Environmental Management Act and the Fisheries Act are alike, and similar to secondary liability provisions in a number of other regulatory statutes:
Environmental Management Act
121(1) If a corporation commits an offence under this Act, an employee, officer, director or agent of the corporation who authorized, permitted or acquiesced in the offence commits the offence whether or not the corporation is convicted.
Fisheries Act
78.2 Where a corporation commits an offence under this Act, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted.
Mr. Mossman argued that the terms ‘directed’, ‘authorized’ and ‘acquiesced’ required some form of personal involvement in the offence committed by the company, and that the Crown must therefore prove the accused knew of or was involved in the circumstances of the offence. He argued that to hold otherwise would create a presumptive liability for officers, directors, and agents merely because of their role in the company. He also argued that the secondary liability provisions must be treated differently from primary liability provisions for strict liability acts, which only require the Crown to prove the doing of a prohibited act or omission, but do not require the Crown to prove intent. Essentially, Mr. Mossman argued that the secondary liability provisions required some form of intentional acquiescence in the company’s commission of the offence.
The Court rejected these arguments and found that the Environmental Management Act and Fisheries Act are presumed to create strict liability offences, and that it would undermine the objective of the regulatory scheme to allow officers, directors and agents to avoid secondary liability by remaining wilfully blind to foreseeable risks and remove the incentive to ensure safe operations to avoid those risks.
In doing so, the Court found that establishing secondary liability in such cases has two aspects. First, the Crown must prove the company’s commission of the charged offence. Second, the Crown must prove the individual’s active or passive involvement in those offences, given the nature of his or her responsibilities. The second factor focuses on the accused’s voluntary assumption of responsibility to control the foreseeable harm that may result from a regulated activity. The nature of the company’s breach must be logically connected to the scope of the accused’s voluntarily assumed responsibilities (which the courts below had found to be the case).
Takeaways
The decision is consistent with recent trends we are seeing in enforcement across many regulated industries, such as mining, workers' compensation, and environmental industries, where regulators are increasingly bringing charges against or imposing administrative monetary penalties on both a company and its officers.
As this trend increases, companies participating in regulated industries may need to reconsider a variety of arrangements. For instance, does your directors' and officers insurance cover regulatory fines? Do your employment agreements with senior officers include provisions related to enforcement against individuals for company acts? If a director or officer is convicted or faces an administrative monetary penalty, who pays the fine? Each of these questions becomes more important as personal prosecution becomes more common.
Notably, in the recent BC Supreme Court Decision in R v J. Cote and Son Excavating Ltd. 2025 BCSC 2540, and the subsequent sentencing decision 2026 BCSC 626, the Court considered criminal negligence charges against both the company and the supervisor of a construction company following a fatality at the company’s worksite. In that case, the Court relied on the collective actions of the senior leadership to demonstrate that the company had failed to meet the requisite standard.
Taken together, both decisions align with recent trends in enforcement across regulated industries like mining, construction, and environmental sectors, where regulators are increasingly holding both companies and their officers accountable through charges or administrative monetary penalties.