R. v. Perera Development Corporation and Perera Shawnee Ltd. (“Perera”)
On February 14, 2008, excavation was underway at a condominium construction site in Calgary, Alberta. Randolph Williams, a truck driver on site, was an unfortunate victim who died as a result of the collapse of a wall of earth. It was found that the wall collapsed due to inadequate sloping or shoring.
Perera Shawnee Ltd. (“PSL”) and Perera Development Corporation (“PDC”) each faced ten counts under the Occupational Health and Safety Act (“Act”) as a “prime contractor” and/or “employer”. Judge Mason found PDC guilty as an “employer” and/or “prime contractor” on nine counts; however, PSL was found guilty of counts eight to ten but was not found to be an “employer” which led to counts one to seven being dismissed.
On June 4, 2012, the Crown spoke to sentence, ex parte, suggesting that the penalty in relation to PSL be in the range of $800,000 - $1 million; and, the penalty in relation to PDC be in the range of $1 – 1.5 million.
The Court considered the sentencing principles as developed in the jurisprudence. Three sentencing principles, inter alia, considered by the Court were those identified by Justice Sanderman in R. v. Independent Automatic Sprinkler Ltd. First, all aspects of the offence are to be considered and an assessment is to be made regarding the degree of negligence. In short, gross negligence should attract a higher fine – less, a lower.
The second factor to consider is the presence of injury and the extent thereof. Death and serious and permanent injury ought to attract heavy fines, whereas a breach in the absence of injury should attract a lower fine.
The third factor relates to the purpose of the Act (i.e., protecting the worker). The penalty meted out for offences under the Act will advance or detract from that purpose. The emphasis for punishment is to deter future offences under the Act for both the offender and those engaged in similar activities.
Judge Mason, with the intent of sending a message to the industry and the government that oversees the industry; and, to encourage people to avoid similar accidents, imposed a global sentence for PDC of $1.25 million and a global sentence for PSL of $900,000. Both penalties were subject to a victim fine surcharge of 15 percent, for a total disposition in excess of $2.4 million.
R. v. Metron Construction Corporation
Metron is a recent case from the Ontario Court of Justice. The accused, Metron, entered a plea of guilty to a count of criminal negligence causing the death of four workers and the injury of a fifth arising out of the collapse of a swing stage. The Crown submitted that a fine of $1 million would be appropriate while defence counsel suggested a fine of $100,000.
In Metron, the Court was dealing with general principles of sentencing as set out in sections 718 to 718.2 of the Criminal Code (the “Code”) (i.e., denunciation, deterrence, rehabilitation and proportionality). The Court acknowledged that there was little case authority providing guidance with respect to sentences under the Code in situations of workplace health and safety. The Court turned to the significant body of case law with respect to sentencing for breaches of occupational health and safety legislation.
Ultimately, the Court in Metron imposed a fine of $200,000 plus a victim surcharge of 15 percent. All the circumstances were considered, including the fines and surcharges imposed upon Metron for breaches of the occupational health and safety legislation, which totalled $112,500. Specifically, the Court considered the impact that fines would have on the economic viability of the organization and the continued employment of its employees, as provided under section 718.21(d) of the Code. The Court was of the view that imposing the penalty recommended by the Crown would likely result in the bankruptcy of Metron and would be in violation of the statutory requirement to consider the offender’s ability to pay.
On August 13, 2012, the Crown filed a Notice of Application for Leave to Appeal and Notice of Appeal. We await the Court’s decision.
Clearly, sentencing under Perera was subject to the provisions of the Act, whereas Metron was subject to the Code. However, the application of at least two of the three principles outlined by Justice Sanderman arguably should apply to both cases.
In reference to the first factor, recall that the degree of negligence is to be considered, with higher degrees attracting greater fines. In Metron, the accused pleaded guilty to criminal negligence whereas the accuseds in Perera were found to be grossly negligent.
Second, the consequence of the offence in Metron resulted in the death of four workers and the serious injury of a fifth. In Perera, the consequence of the breach led to the death of one worker.
The third factor, arguably, is not directly applicable in Metron as it cannot be said that the purpose of the Code is to protect the worker in the workplace. However, the 2004 amendments to the Code specifically address corporate liability and provide new legal duties for corporations in the context of workplace health and safety. Further, the sentencing principle of deterrence applies both to breaches under the Act and offences under the Code. The global penalties imposed in Perera exceeded the penalties found in Metron by a multiple of seven.
How can the large disparity in the penalties be reconciled? Was it the fact that Metron mitigated by entering a plea of guilty? Was it the Code requirement of assessing economic viability of the organization when considering a fine amount? Was it because Perera was, in all likelihood, going into receivership in any event?
Having regard to the above factors the total fine penalties imposed in Metron should have been higher than those imposed in Perera. In Metron, there was a higher degree of culpability and the consequences of the offence unfortunately involved the demise of four workers. One would think an offence involving gross negligence would call for lesser punishment than one involving criminal negligence.