Executive Summary: Key Legal and Evidentiary Issues

• Compliance of the worksite traffic control plan with article 10.3.1 of the Code de sécurité pour les travaux de construction and the Tome V Normes on road signalisation.
• Evidentiary weight of the CNESST inspector’s photographs and observations versus the engineer’s plan and the superintendent’s testimony regarding how the signage was actually installed.
• Characterisation of the use and positioning of flaggers (signaleurs routiers) and barriers, including whether temporary movement of a barrier for local traffic breached the applicable Normes.
• Scope of the specific offence wording chosen in the statement of offence, and whether the CNESST could rely on the general obligation in article 2.4.4 of the Code at trial.
• Assessment of the defendant’s due diligence, including reliance on a specialised firm, an engineer-stamped plan, and onsite verification of compliance with the plan.
• Determination that no contravention was proven and, in any event, that the defendant established reasonable diligence, leading to an acquittal with no monetary award stipulated.

Facts and background

Pavages Multipro inc. obtained a paving contract from the City of Blainville for work on Rue du Plein Air, a long, horseshoe-shaped residential street connecting to Chemin de la Côte Nord near a busy intersection controlled by traffic lights and close to an entrance to Autoroute 15. The closed section of Rue du Plein Air ran from the intersection with Chemin de la Côte Nord to a point somewhat further north, enclosing six or seven residences and a Mercedes dealership. This configuration meant that many residents, particularly on the eastern side of the “horseshoe”, were directly affected by detours during the works, and it was the first day of the project, when residents would be unfamiliar with the signage in place. Pavages Multipro, acting as maître d’œuvre, retained SBR, a specialised traffic control firm, to design and implement a traffic management and signalisation plan. SBR prepared a plan stamped and signed by engineer Maxime Juteau and installed the prescribed signs and barriers, including “rue barrée”, “détour”, “virage en U” and associated direction signs at various points on Rue du Plein Air and on Chemin de la Côte Nord. The engineer’s plan followed the applicable Normes in Tome V for a complete closure of a road segment and did not require any flaggers (signaleurs routiers). Nonetheless, the defendant’s superintendent, drawing on decades of experience in construction and worksite signalisation, decided on his own initiative to place two flaggers at each extremity of the closed section, while the CNESST inspector later required a third to manage access near the car dealership.

The CNESST inspection and alleged non-compliance

On 25 September 2024, at approximately 8:02 a.m., a CNESST inspector arrived on site, parked on Rue du Canoë and walked toward the work zone, taking multiple photographs in a short time span. The photographs showed heavy machinery working on the asphalt, residential side streets feeding into Rue du Plein Air, and an intersection with Chemin de la Côte Nord where barriers, cones and a flagger were in place. In particular, certain images depicted: a flagger in the middle of the northbound lane; a barrier partially on the grassy shoulder instead of fully on the pavement; cones lining the central median; and additional barriers and detour signs at other intersections along Rue du Plein Air. The inspector concluded that the worksite signalisation was not compliant because one flagger was standing in the middle of the northbound lane, the main barrier restricting the northbound circulation was placed on the grassy shoulder rather than on the roadway, local circulation was not being effectively restricted, and a further flagger was allegedly missing. On that basis, the CNESST charged Pavages Multipro with contravening article 10.3.1 of the Code de sécurité pour les travaux de construction, constituting an offence under article 236 of the Loi sur la santé et la sécurité du travail.

Regulatory framework and standards at issue

The alleged infraction turned on compliance with article 10.3.1 of the Code de sécurité pour les travaux de construction, which requires the maître d’œuvre to ensure that a construction site is equipped with signalisation that conforms to the Normes in chapters 1, 4 and 6 of Tome V of the “Signalisation routière” manual. The prosecution framed its case specifically around this provision and could not, at the argument stage, recharacterise the alleged breach as a violation of the general obligation in article 2.4.4 of the Code; the court held that the CNESST was bound by the wording of the offence as laid in the statement of offence. The engineer testified that he had applied the correct Norme from Tome V for a complete closure of a section of road. Under that standard, no flagger was required. The plan instead relied on a structured system of signage, including advance warning signs on Chemin de la Côte Nord some 50 metres before the intersection, and a barrier combined with a detailed sign at the entrance to Rue du Plein Air indicating the dates of closure, the nature of the works, and the designated detour route via Rue de la Grande Allée. Additional signage at downstream intersections was designed to guide traffic around the closed segment and manage residential access, though those outlying signs were not directly implicated in the infraction. Another Norme from Tome V addressed the use and positioning of barriers used to close part of a public road. Barriers must ordinarily block 80% of the lane in front of the work area, but where local traffic is permitted — signposted by a “circulation locale seulement” panel — the Norme recognises an exception: sufficient space must be left to allow local residents, business clients and workers to reach properties within the closed zone. Thus, full obstruction is not required if circulation is limited to local users. The engineer also had a general note on the plan referring to providing a sufficient number of flaggers to manage circulation at worksite accesses, intersections, counter-flow segments, pedestrian crossings and landlocked residences, with a specific code (“T-60 requis à chaque approche”), but he explained that whenever flaggers are actually required under the Normes, they would be explicitly indicated on the plan. From his perspective, adding flaggers where the Norme does not require them can itself create additional risk for workers in the roadway.

Evidence of how the signalisation was actually deployed

The superintendent for Pavages Multipro, who had 40 years of construction experience and specific training in traffic control and signalisation plans, testified that he held a pre-worksite meeting with all workers to explain the work and the traffic management methods, and personally verified the installation of the signage at 7:30 a.m. on the day of the inspection. He stated that at that time, the contested barrier was on the northbound lane as required, blocking access while leaving enough room for local traffic to pass, and the signalisation overall fully conformed to the engineer’s plan. He left the site around 8:00 a.m., approximately five minutes before the inspector’s arrival, and was recalled by phone, returning to the site within minutes. He could not say exactly why the barrier had been moved partially onto the grassy shoulder when the inspector took her photographs; he suggested plausible explanations, including that large vehicles such as water trucks needed to enter to dampen the asphalt, or that a school bus, captured in the photographs, may have required the barrier to be shifted temporarily to allow passage. The court regarded these hypotheses as consistent with the photographic record and with the Norme allowing local circulation. On the question of the number and presence of flaggers, the inspector had speculated that vehicles were ignoring the closure and not taking the detour, and complained that an additional flagger was missing. However, the court noted there was no direct evidence of any driver traversing the work area end-to-end, and the photographs themselves depicted at least two flaggers: one near a school bus and another at the contested intersection. In addition, at the inspector’s request a third flagger was added near the dealership entrance to manage business access, even though the court considered that third position not to be required under Tome V.

Assessment of risk and the positioning of the flagger

A major evidentiary and legal issue concerned whether a flagger located at the centre of the northbound lane, with an adjacent barrier partially on the grass, created an unreasonable risk of the worker being struck, in breach of the Normes. The inspector issued a closure notice until the barrier could be returned to the roadway in the northbound lane and the flagger repositioned behind a cone, in the centre of the street but protected between the cone and the southern work area. Those corrective measures were implemented immediately; the site was then allowed to reopen. Defence evidence added that the inspector initially required the barriers to be moved about 50 feet away from the intersection contrary to the engineer’s plan. When this was tried, drivers only saw the barriers after turning into the northbound lane, which the superintendent considered more dangerous. The barriers were therefore restored to their original, plan-compliant position at the intersection so that they would be visible before drivers committed to turning, and the inspector allegedly agreed to this configuration. The CNESST evidence did not address this later adjustment. In reviewing the overall configuration, the court emphasised that the intersection was signalised, traffic was slowed by lights, the flagger wore highly visible fluorescent clothing with reflective bands, two tall cones marked the lanes near the curb, a second barrier protected the excavated asphalt area in the southbound lane, and advance signage was placed 50 metres before the intersection. In that context, the court found that the risk of the flagger being hit was not a reasonable one and, crucially, that Tome V did not specify an exact position where a flagger must stand. Given the mobility of the flagger, as shown in photographs taken seconds apart at the same time stamp, and the overall safety context, the court was not persuaded that the flagger’s location breached any specific Norme.

Due diligence and responsibility for the signalisation plan

Even beyond the finding that no contravention of article 10.3.1 had been proven on the facts, the court held that Pavages Multipro had demonstrated due diligence. The company had engaged SBR, a specialist firm in road work signalisation, and obtained a plan duly signed and sealed by a professional engineer. The superintendent checked the installation before work started to confirm conformity with that plan, which itself complied with the applicable Normes in Tome V. Although the engineer’s Norme-based plan did not require flaggers, the defendant’s superintendent proactively added two to enhance control at the extremities of the closed section. The later addition of a third flagger at the inspector’s request further showed responsiveness to oversight. The presence on site of a representative of the City, the contracting authority, who was reportedly satisfied with both the engineer’s plan and SBR’s implementation, reinforced the impression that the defendant had taken reasonable precautions. While the engineer conceded that his plan might have been different had he been fully informed of the real potential traffic volumes, any debate about the adequacy of the plan itself was not central because the citation targeted the maître d’œuvre, not the engineer personally. The court ultimately found that, on the balance of probabilities, Pavages Multipro had acted with reasonable diligence to avoid regulatory breaches in its worksite signalling.

Outcome and implications

The Court of Québec, Criminal and Penal Chamber, concluded that the CNESST had not established that the worksite signalisation was non-compliant with article 10.3.1 of the Code de sécurité pour les travaux de construction as read with the relevant Normes of Tome V on road signalisation. Moreover, the court held that, even if a technical non-compliance could be argued, Pavages Multipro had in any event proven it exercised due diligence by retaining a specialised firm, relying on an engineer-certified plan, and verifying implementation before work began, while also going beyond the plan by deploying flaggers at each end of the closure. On this basis, the defendant Pavages Multipro inc. was acquitted, and no fine, damages, costs order or other monetary award is specified in favour of any party in the judgment; the total monetary amount ordered in favour of the successful party therefore cannot be determined from this decision and appears to be nil or not expressly awarded.