On May 30, 2012, in R v Global Fuels, the Court of Québec interpreted for the first time the new section 22.2 of the Criminal Code (the Code) regarding the criminal liability of organizations. Section 22.2 makes corporations liable for the actions of a “senior officer”. Section 1 of the Code defines “senior officer” as a representative who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of the organization’s activities and in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer. The Court held that the term “senior officer “encompasses more than the individuals who form the directing minds of the corporation under the identification doctrine which had previously governed corporate liability (see Canadian Dredge and Dock Co v. The Queen.
The Supreme Court of Canada had previously characterized a “directing mind” as follows (The Rhone v The Peter AB Widener: at 526):
The key factor which distinguishes directing minds from normal employees is the capacity to exercise decision-making authority on matters of corporate policy, rather than merely to give effect to such policy on an operational basis….
The Court of Québec’s ruling in R v Global Fuels, which ordered Global Fuels Inc. (Global), to stand trial on the charge of having conspired to fix the price of gas in breach of the Competition Act, interpreted the term “senior officer” to encompass more than the “directing minds” of the corporation (at para 84):
[UnofficialTranslation] To determine whether a person is a senior manager, the court may consider not only the person’s title in the business, but also the duties he performs and the extent of his authority. The court must also measure the importance of the activities that the individual manages on behalf of the company.
The Court further explained that whether a person has an “important role” in establishing policies or in managing an important aspect of the organization’s activities is a “question of fact requiring the court to examine, through all the evidence presented, the entire organizational structure and activities of the corporation to reach a conclusion.” [UnofficialTranslation]