As a result of a horrific workplace accident on Christmas Eve in 2009, Metron Construction Corporation (Metron) recently pleaded guilty to criminal negligence causing death and has been fined $200,000 (plus a 15% surcharge). Its president also plead guilty, as a director of the company, to four charges under the Ontario Occupational Health and Safety Act (OHSA) and has been fined $90,000 (plus a 25% surcharge). Criminal negligence charges against the project manager remain outstanding.
The accident occurred when Metron was carrying out balcony repairs to a Toronto apartment building. Its work crew was wrapping up work for the day and the site supervisor boarded the swing stage scaffold with five other workers to travel back to ground level. Only one of the men was wearing fall protection equipment. The swing stage collapsed and the five workers without fall protection fell 14 floors to the ground. Four of the workers (including the site supervisor) died as a result of the fall, and the fifth worker suffered serious injuries.
It is not surprising that Metron would be been found to bear responsibility for the workplace accident and be given a stiff sentence. What you may find surprising is how Metron was held criminally responsible and its president and sole director held personally responsible based upon seemingly little, if any, evidence to suggest the president or other high-ranking company officials had shown disregard for safety. The agreed statement of facts filed with the Ontario Court of Justice indicates that Metron had taken a number of positive steps to prevent this type of occurrence. Nonetheless, it was held criminally responsible and its president held personally responsible for the accident, primarily because of serious errors in judgment by personnel Metron had relied upon to supervise the work site.
The agreed facts reveal that Metron had taken a number of steps to ensure the work would be carried out safely. It made sure the roof anchors on the building were inspected for compliance with safety requirements. It required the project manager to take two swing stage training courses. It required the site supervisor and other workers to take fall protection and swing stage training. It provided a comprehensive safety manual to all workers. It required the project manager to conduct periodic safety meetings with workers, and submit weekly site safety inspection reports. Its president visited the project at least weekly and did not observe any safety violations during any of his visits.
Moreover, defects in the design and manufacture of the swing stage significantly contributed to the cause of the accident. The stage was designed for a maximum rated capacity of 1,000 pounds with a safety factor of 4:1, meaning that it ought to have been able to hold 4,000 pounds. However, a number of welds on the swing stage were defective, and it was agreed that a properly manufactured swing stage likely would not have collapsed. The agreed facts do not state that the defective state of the swing stage ought to have been detected by Metron.
The other contributing causes of the accident relate to the actions of the site supervisor. Most notably, he directed or permitted six workers to work on the swing stage when he knew or ought to have know it was unsafe to do so. At the time of accident, there were only two lifelines for the six workers. Only one of the lifelines was put into use. The weight of the six workers exceeded the 1,000 pound maximum rated capacity of the swing stage, although it had been supplied without any label setting out the maximum capacity as required under the OHSA.
The agreed facts do not indicate whether the project manager and/or Metron ought to have detected the absence of this information. However, it is also noteworthy that a Ministry of Labour inspector attended at the site periodically during the project and Metron was cooperative and complied with all requests from the inspector. Presumably this was therefore something that was also missed by the Ministry of Labour during its inspections of the job site.
In addition, the site supervisor permitted workers under the influence of drugs to work on the project. Three of the four deceased, including the site supervisor, were found to have marijuana in their system at levels which were consistent with recent ingestion. The agreed facts do not indicate the president, project manager or any other company official was aware of any potential problem with drug use on site.
So how did these facts result in a criminal conviction against Metron and an OHS conviction against its president? As for criminal liability, it is important to note that since the Criminal Code was amended by Bill C-45 , a corporation can be found criminally negligent in a workplace accident if the Crown proves:
- one or more company “representatives” failed to take reasonable steps to prevent bodily harm to worker(s) and showed “wanton and reckless” disregard for the worker(s)’ safety; andt
- the “senior officer(s)” responsible for the relevant aspect of the company’s activities departed “markedly” from the standard of care that in the circumstances could reasonably be expected to prevent a representative from showing wanton disregard for worker safety and failing to take reasonable steps to prevent harm to workers.
The Metron case provides a good illustration of how the first part of the above test might be met. A site supervisor who consumes marijuana with his crew and then has them carry out work from heights on an overloaded swing stage without adequate fall protection equipment is undoubtedly showing a reckless disregard for worker safety.
It is also interesting to note that the site supervisor was not a Metron employee, but rather a contractor that had been hired by the project manager. His actions were nonetheless attributable back to Metron because the definition of “representative” under the Criminal Code includes not only the directors and employees of a corporation, but also its agents and contractors.
But even so, many business owners and managers may wonder how the second part of the test for criminal negligence has been made out in this case. At first blush, it is difficult to understand how it could be concluded that “senior officials” within Metron were negligent, let alone fell “markedly” short of what they ought to have done to ensure adequate site supervision was in place. The agreed facts do not speak of any specific failures on the part of the president and they highlight a number of steps taken by the company to ensure it had competent supervision in place. Training was provided to the project manager and site supervisor in respect to fall protection and the safe use of the swing stage, and regular inspections of the work site were carried out.
The key to criminal liability being attributable back to Metron in this case lies in how broadly the Criminal Code defines a “senior officer”, which it describes as being a representative who “plays an important role in the establishment of the [company’s] policies” or “is responsible for managing an important aspect of the [company’s] activities”. Thus, in this particular case, the criminal negligence conviction against Metron is based upon the premise that the site supervisor was himself a “senior officer” of the company and, as such, his gross negligence in supervising the work should be treated as tantamount to gross negligence on the part of Metron.
The Bill C-45 amendments to the Criminal Code were undoubtedly intended to make companies criminally responsible for negligent conduct on the part of a broader range of members of management, including mid-level managers with mere operational responsibility. However, it is highly questionable whether the intent was to go so far as to make corporations vicariously liable under the Criminal Code for the gross negligence of a supervisor. This level of operational responsibility, alone, does not typically attract a management designation within most organizations. This is for good reason, because they often lack independent authority to make decisions regarding the day-to-day management of the business.
However, Metron likely conceded in its case that the site supervisor was a “senior officer” because his authority went well beyond that of a traditional supervisor. Metron only had two permanent staff who worked in its office as employees. For its various job sites it retained a project manager and site supervisor who, in turn, were responsible for retaining and/or training competent workers for the project. In addition, the site supervisor was essentially expected to be on the job site at all times work was being performed. Thus, he was quite arguably entrusted by Metron (together with the project manager) with compete authority over the execution of work on the project, including responsibility to ensure that the work was carried out by competent personnel in a safe fashion. Moreover, perhaps the undisclosed failings of the project manager made the issue of the site supervisor’s level of responsibility a moot point.
Unfortunately, Canadian organizations are now faced with the precedent of a company being convicted of criminal negligence based on the failings of a “site supervisor”. That label is somewhat misleading in this case given that the “supervisor” in question had authority going well beyond that of merely leading the execution of the work. Indeed, the sentencing judge went so far as to describe him as being a “mid-level manager.”
Organizations can only hope that this distinction is not lost on crown prosecutors when assessing the appropriateness of criminal negligence charges in future cases. It is easy to see why businesses would find it patently unfair to treat the gross negligence of a mere supervisor as automatically establishing criminal negligence on the part of the company. This essentially eliminates the ability of the company to defend itself by showing all the steps management had taken to ensure, among other things, that competent supervision was in place.
Moreover, it should also be of concern to senior corporate managers that Metron’s president was held personally liability under the OHSA (he plead guilty to these charges in exchange for the withdrawal of criminal charges). Under the OHSA, corporate directors and officers have a duty to take all reasonable care to ensure the corporation complies with the Act and regulations. In this case, Metron’s president plead guilty to failing to take all reasonable care to ensure the company:
- did not allow workers to use a defective or hazardous swing stage;
- did not allow the swing stage to be overloaded; gave adequate training to workers in the use of fall protection by a competent person;
- and prepared and maintained proper written training and instruction records for each worker.
While the agreed facts may not tell the entire story, this case should be troubling to the extent it imposes personal liability under OHS legislation without any apparent evidence on the record to show an obvious or flagrant safety failure on the part of the individual convicted. For example, the agreed facts to do not indicate that Metron’s president ought to have known the swing stage was defective and missing labels to indicate its maximum capacity. Nor do the agreed facts indicate the president ought to have known the swing stage was being overloaded by the supervisor or being used without enough lifelines for every worker on board. Nor do the agreed facts indicate the president ought to have known drug use was a potential problem on site. Rather, the agreed facts in this case describe a president who had regularly visited the site without observing any safety violations and who had taken a number of positive steps to ensure work on the project was carried out in a safe manner. Moreover, the company had 20 years of experience in the construction industry without any prior violations of health and safety legislation.
Canadian prosecutors have traditionally taken a cautious approach to pursuing criminal charges and/or personal liability in workplace accidents. Notoriously appalling workplace accidents have always garnered careful consideration for criminal and personal charges. What remains to be seen is the extent to which the Metron case is relied upon in the future to support the more common pursuit of criminal charges against organizations and personal charges against their senior managers for workplace accidents caused by blatant acts of negligence on the part of on-site supervisory personnel. If so, the question which looms large is whether imposing such criminal and personal liability is fair and proper in cases where members of management are neither complicit in the negligent conduct in question, nor themselves blatantly negligent in their training and oversight of the on-site supervisor.