What is commonly referred to as Bill C–45 amended the Canadian Criminal Code by imposing criminal liability on corporations, and corporate representatives, that fail to take reasonable steps to ensure the safety of their workplace. A recent Court of Appeal decision more than tripled a fine imposed on a construction company after the company pleaded guilty to criminal negligence causing death. This drastic increase in the sentencing fine sends a message to employers that the courts are taking their obligation to ensure a safe workplace very seriously.
Metron Construction entered into an agreement to restore concrete balconies on two high-rise buildings in Toronto. In order to repair the balconies, Metron had to acquire swing stages. The normal practice was that only two workers should be on a swing stage at the same time.
In December 2009, five workers, plus a site supervisor, got on one of the swing stages together to travel from the 14th floor to the ground. There were only two lifelines (safety harnesses) attached to the swing stage. The weight of the workers and their equipment was too much for the swing stage to bear, and it collapsed. Three workers, including the site supervisor, fell to their death, and two other workers were seriously injured. The one worker who was properly attached to a lifeline survived the fall unharmed. Following the incident, a toxicological analysis revealed that three of the four deceased, including the site supervisor, had marijuana in their system at the time of the accident.
As a result of the acts and omissions of the site supervisor, who was considered a “senior officer” within the meaning of s. 2 of the Criminal Code, Metron pleaded guilty to criminal negligence causing death pursuant to s. 22.1 (b), s. 217.1, and s. 219 of the Criminal Code.
The decision of the courts
The decision at trial
At trial, the Crown sought a fine of $1 million. The Crown submitted that this incident was entirely preventable, as the swing stage came without the proper authorization from a professional engineer and was assembled by Metron’s workers without instructions. Moreover, the site supervisor entirely ignored safety protocols and it was found that if the workers were wearing the proper safety equipment they would have survived the fall. In requesting a substantial fine, the Crown asked the court to emphasize the overriding principle of deterrence.
The defence accepted that Metron was guilty of a serious offence and that deterrence is the most important sentencing principle. However, the defence emphasized that the court must also consider the impact of the fine on a company, its demonstrated remorse, and the absence of any history of convictions. In addition, the defence submitted, by pleading guilty, Metron spared everyone the emotional and financial cost of a trial.
The sentencing judge agreed with both parties, but favoured the mitigating factors submitted by the defence. In addition, he specifically took into account Metron’s financial situation. The sentencing judge was concerned that the penalty recommended by the Crown would likely drive the company into bankruptcy. He was satisfied that a fine of $200,000—three times the net earnings of the company—was appropriate in the circumstances.
The decision of the Court of Appeal
On appeal, the Crown submitted that the sentencing judge erred in determining the sentence without regard to the higher level of culpability inherent in criminal offences and the particular gravity of the offence of criminal negligence. Moreover, the Crown submitted that the sentencing judge erred by determining the fine amount based on the respondent’s ability to pay.
The Court of Appeal agreed with the Crown and found that the sentencing judge did not give enough weight to the gravity of the offence. In addition, the court agreed that the sentencing judge incorrectly concluded the Criminal Code required the court to consider the offender’s ability to pay. While economic viability is a factor to be considered, the court found it is certainly not a condition precedent to the imposition of a fine, nor does it dictate its quantum.
The court concluded that a $200,000 fine was manifestly unjust. In coming to this decision, the court found that a fine of $200,000 failed to convey the need to deliver a message on the importance of worker safety, and, as such, did not place enough emphasis on deterrence.
Furthermore, the court commented that although the incident was predominantly the result of the actions and inactions of one site supervisor, this did not diminish Metron’s liability. The intent of Bill C–45 is to trigger responsibility by the corporation for the conduct and supervision of its representatives. Accordingly, the Court of Appeal, having regard to the nature and gravity of the offence, the victims, and the sentencing principles set forth in the Criminal Code, imposed a fine of $750,000.
The author wishes to thank Chris Mamo, articling student, for his help in preparing this legal update.