In June 2012 we published a Labour and Employment Communique – Alberta regarding guilty pleas that were entered in two precedent setting occupational health and safety prosecutions arising out of the same tragic incident, which had the potential of record setting fines. We are now able to report on the outcomes of those matters. http://www.millerthomson.com/en/publications/communiques-and-updates/labour-and-employment-communique-alberta/june-2012
By way of background, on Christmas Eve of 2009, five workers from Metron Construction Corporation (“Metron”) fell from the 13th floor scaffolding that they were working on in downtown Toronto, resulting in four deaths and one man being seriously injured. Five of the six workers on the scaffolding were not using the prescribed safety equipment and the scaffolding only had two safety lines. The incident was reported nationwide, spurring a public outcry regarding workplace safety and ultimately reform to the Ontario Occupational Health and Safety Act (“OHSA”). Both provincial regulatory bodies and the Toronto Police carried out investigations, resulting in regulatory charges and criminal charges being laid. From a fitness for duty perspective, it is also important to note that toxicology reports indicated that at the time of the incident, 3 of the 4 deceased, including the site supervisor, “had marijuana in their system at a level consistent with having recently ingested the drug”.
On July 13, 2012, the Sentencing Judge accepted the joint submission of the Crown Prosecutor and Defence with respect to the four guilty pleas entered by the former President, Joel Swartz, for OHSA violations. He was fined $90,000 plus $22,500 as a victim’s surcharge for the four counts. Given that the fines exceeded Mr. Swartz’s annual income, he was given time to pay the fines over a 12 month period. Other mitigating factors taken into account by the Sentencing Judge were the fact that he had four children to support and that since the incident his income had dropped by approximately 50%. These were also his first convictions under OHSA, or otherwise, for occupational health and safety related offences. As a result of the guilty pleas on the four counts under the OHSA, the Criminal Code charges against the Mr. Swartz were withdrawn. The fine is the highest one yet under the OHSA for someone in Mr, Swartz’s role.
With respect to the criminal negligence charge under the Criminal Code, the Crown Prosecutor requested a fine of $1,000,000 and the Defence requested a fine of $100,000. The Sentencing Judge fined Metron $200,000 plus $30,000 as a victim surcharge. While this may seem quite low given the Crown’s request, the Sentencing Judge thought it was appropriate in the circumstances, based on the following factors (as per an analysis pursuant to s. 718 of the Criminal Code):
- the swing stage (scaffolding) had structural defects despite being new;
- there was no advantage (financial or otherwise) gained by Metron and the offense was not pre-meditated;
- Metron likely would be bankrupted if it had to pay a larger fine and the fine represented three times its annual net earnings in its last profitable year;
- by entering a guilty plea Metron saved the public “purse” considerable monies because a trial was not required; and
- Metron had no convictions for similar offences.
The $200,000 fine is precedent setting as it is double the amount of the only other fine under the Criminal Code for a similar offence on a guilty plea, which was in the R. c. Transpavé case. Metron’s conviction is also the first corporate criminal negligence case in Ontario. The lesson here is that even if a corporation overall has safety strengths, they can be cancelled out by the weak safety practices of a supervisor. For this reason an audit function should be incorporated into all corporate safety systems to ensure compliance with both it and all applicable laws.
R. v. Metron Construction Corporation, 2012 ONCJ 506 (CanLII) at: http://www.canlii.ca/en/on/oncj/doc/2012/2012oncj506/2012oncj506.html