Recently, the Ontario Court of Appeal issued its decision in the sentencing appeal in R. v Metron Construction Corp. The Court of Appeal’s decision suggests that in future, employers are likely to see significantly higher fines associated with Criminal Code convictions for health and safety violations than has previously been the case.
In Metron the trial judge found the company guilty of criminal negligence causing death and fined the company $200,000. In rejecting the Crown’s recommendation for a larger fine, the trial judge noted that a larger fine would likely have bankrupted the company. The judge concluded that such a result would be contrary to section 718.21(d) of the Criminal Code which, on sentencing, requires the court to consider the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees.
On appeal the Court of Appeal rejected the proposition that section 718.21(d) precluded a sentence that might result in the bankruptcy of a company, stating:
The economic viability of a corporation is properly a factor to be considered but it is not determinative. Certainly it is not a condition precedent to the imposition of a fine nor does it necessarily dictate the quantum of the fine.
The Court of Appeal allowed the Crown’s Appeal and sentenced the company to pay a fine of $750,000.
This decision is also noteworthy for what it says about the quantum of fines for Criminal Code convictions for occupational health and safety violations. In the few cases where fines have been imposed for Criminal Code convictions, the fines have tended to be quite low relative to the fines imposed for convictions for regulatory offences under provincial health and safety legislation. The Court of Appeal ruled that, while it was appropriate for the trial judge to consider the range of sentences available under the OHS regulatory jurisprudence, a fine imposed on conviction for criminal negligence causing death should reflect the “higher degree of moral blameworthiness and gravity associated with [such a conviction]”.