Canadian Occupational Safety (COS) magazine is the premier workplace health and safety publication in Canada. We cover a wide range of topics ranging from office to heavy industry, and from general safety management to specific workplace hazards.
Issue link: https://digital.thesafetymag.com/i/358706
10 Canadian Occupational Safety www.cos-mag.com O n Sept. 4, 2013, the Court of Appeal for Ontario released its decision in the sen- tence appeal in R. v. Metron Construction Corporation. The court overturned the $200,000 fi ne imposed on Metron for a charge of criminal negli- gence causing death and imposed a fi ne of $750,000. On Christmas Eve 2009, six workers were on a swing stage 13 stories above the ground in Toronto. The swing stage collapsed and fi ve of the workers fell to the ground. Four workers were killed and a fi fth suffered serious injuries. The sixth worker, the only one connected to a fall arrest system, was not injured. Investigations revealed the swing stages did not have serial numbers or anything to describe their maximum capacity. They were also delivered without manuals, instructions or design drawings. Additionally, shortly before the accident, three of the four deceased, including the site supervisor, had consumed marijuana. The investigation also determined that a signifi cant cause of the collapse of the swing stage was its defective design and inabil- ity to withstand the combined weight of the men and their equipment. Criminal negligence charges were laid. In June 2012, Metron pleaded guilty to a charge of criminal negligence causing death. As part of the guilty plea, it was agreed that Metron's site supervisor had been criminally negligent by: • directing or permitting six workers on the swing stage when he knew, or should have known, that it was unsafe to do so • directing or permitting six workers to board the swing stage knowing that only two lifelines were available • permitting workers under the infl uence of drugs to work on the project. It was agreed that Metron had taken a number of positive safety-related steps prior to the accident. These included: • requiring an engineering inspection before commencing work • arranging for swing stage and fall protection training for the project manager, site supervisor and workers • periodically reviewing safety requirements, includ- ing the use of swing stages, with workers • performing weekly job site inspections • providing workers with a comprehensive safety manual • co-operating with the Ministry of Labour during inspections. The $200,000 fi ne was imposed in July 2012. The Crown appealed, asserting that the sentencing court had committed legal errors and imposed a sen- tence that was manifestly unfi t. The Court of Appeal agreed and allowed the appeal. Here are some key points of the decision: Criminal offences are more serious: The court distinguished between regulatory health and safety violations and criminal negligence causing death. It held that health and safety legislation is to establish and enforce standards of health and safety in the workplace, whereas criminal negligence provides "additional deterrence for morally blame- worthy conduct." The court also noted that criminal negligence causing death is "one of the most serious offences in the Crimi- nal Code" and is "at the high end of moral blameworthiness." Corporation bound by conduct of supervisor: The decision also confi rms the expanded scope of corporate liability under the 2004 Bill C-45 amendments to the Criminal Code. Based on his position and responsibilities, the site supervisor met the Criminal Code test to attract liability for criminal negligence to Metron. The Court of Appeal commented that the "intent of Bill C-45 is to trigger responsibility by the cor- poration for the conduct and supervision of its representative." This reaffi rms that the behaviour of a person with a high degree of localized responsibility can attract criminal liability for an entire organization. The court also held that the site supervisor's position within Metron could not diminish the gravity of the offence. Employers can be bankrupted by crimi- nal penalties: When sentencing an organization, the Criminal Code requires the courts to consider "the impact that the sen- tence would have on the economic viability of the organization and the continued employment of its employees." The Court of Appeal found the sentencing court placed too much emphasis on ability to pay because it thought it was precluded from imposing a sentence that might result in Metron's bankruptcy. The Court of Appeal held that a corporation's financial viability is a factor to consider but it is not determinative. In appropriate circumstances, fining a company into bankruptcy may be appro- priate. This is a chilling development because Metron's criminal liability was based solely on the actions of the site supervisor — actions that displaced a fairly significant number of positive steps taken by Metron. This case suggests the criminally negligent behaviour of a single, low- level official could lead to a sentence that sends a company into bankruptcy. PRACTICAL TIPS FOR EMPLOYERS The case presents a stark reminder to employers that, where appropriate, criminal prosecutors and the courts will use the criminal law to severely punish egregious workplace behaviour of company repre- sentatives. The case should also remind employers to vigilantly ensure that all those in positions of authority at its work sites, regardless of the kind of work site, are abiding by all expected workplace safety standards. Steps that could be taken include: • ensuring supervisors are trained in and fully understand applicable company policies and procedures addressing the health and safety risks at the workplace • reviewing and qualifying the safety-related back- ground and experience of anyone who will hold a position of authority within the company before the person is hired • ensuring ongoing monitoring of job sites by supervision and reporting of that monitoring to designated management personnel • ensuring that all visits to the workplace by more senior management or another party (such as safety personnel or a consultant) are thoroughly documented and include any discussions or con- cerns about health and safety and corrective action • ensuring followup to achieve prompt corrective action respecting noted safety defi ciencies • incorporating the monitoring of job or site health and safety compliance into the performance stan- dard, measure and review for all supervisors • taking immediate action to address any supervi- sor's substandard health and safety practices. Cheryl A. Edwards is a former Ontario Ministry of Labour OHS prosecutor and leads Heenan Blaikie's national OHS and workers' compensation practice group. She can be reached at cedwards@heenan.ca. Jeremy Warning is a partner in Heenan Blaikie's labour and employment group and a member of its national OHS and workers' compensation practice group. He can be reached at jwarning@heenan.ca. This article was prepared with assistance from Daniel Mayer, an associate in the labour and employment group in Heenan Blaikie's Toronto offi ce. Metron decision reveals employers can be bankrupted by criminal penalties $750,000 fi ne brings lessons for employers CHERYL EDWARDS AND JEREMY WARNING LEGAL LANDSCAPE CHERYL EDWARDS AND JEREMY WARNING CHERYL EDWARDS AND JEREMY WARNING The law firm that does more than defend OHSA charges. At Fasken Martineau, lawyers and consultants work together to provide clients with OHS and Workers' Compensation training, consulting and legal solutions, all protected by solicitor and client privilege. Training Practical OHS and WSIB Compliance Consulting Workplace Safety Audits and OHS Procedures Legal Defending OHS and Criminal Charges VANCOUVER CALGARY TORONTO OTTAWA MONTRÉAL QUÉBEC CITY LONDON PARIS JOHANNESBURG Norm Keith, B.A., J.D., LL.M., CRSP Partner +1 416 868 7824 nkeith@fasken.com