And the Subsequent Provincial and Federal Liability of Metron Construction that Followed
On Christmas Eve of 2009, five individuals fell from the 13th floor scaffolding that they 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 proper safety equipment. 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.
Entering the Pleas
The Ministry of Labour laid 61 charges against various parties from Metron Construction pursuant to the OHSA as a result of the incident. On June 15, 2012, the President of Metron, Joel Swartz, pled guilty to four charges under the OHSA, which included:
- Two counts of failing to take reasonable care to ensure a worker using a fall protection system was adequately trained, pursuant to section 26.2 of the Construction Regulation;
- One count of failing to take reasonable care to ensure a suspended scaffold was maintained in a condition that did not endanger a worker or was defective or hazardous, pursuant to section 93 of the Construction Regulations; and
- One count of failing to ensure that a suspended platform complied with all aspects of the Construction Regulations, pursuant to section 134 of the Construction Regulations.
The President has not been sentenced yet, but the Crown and the Defence have provided a Joint Submission seeking a fine of $22,500 per charge, $90,000 cumulatively. The maximum fine for each charge is $25,000. Sentencing judges generally approve Joint Submissions, but are not obligated to do so. If this Joint Submission is accepted, this will be the highest global fine for someone in this role in an organization.
The investigations also led to the Police charging Metron Construction, its President, and a supervisor with four counts of criminal negligence causing death and one count of criminal negligence causing serious bodily harm under the Criminal Code.. Metron has pled guilty to the criminal negligence charges. Under the Criminal Code, there is no limit on the fine that can be imposed on a convicted Corporation. The Crown is requesting a penalty of $1 million. The Defence has not yet submitted their position on sentencing.
Provincial Regulatory Prosecution vs. Federal Criminal Prosecution
This is a landmark case as it signifies the first corporate guilty plea in Ontario under the Criminal Code since the amendments through Bill C-45 in 2004. If the $1 million penalty is upheld, it will mark the highest penalty for criminal negligence causing death at a workplace in Canada.
Bill C-45 was enacted following the Westray Mine disaster in 1992, where 26 miners died in a explosion in Nova Scotia. The Bill significantly increased the scope of criminal liability of an organization. Prior to the amendments, for an organization to be criminally liable, the ‘directing mind’ had to commit the offence. Now, an organization may be liable where a representative commits an offence and a senior officer departs markedly from the standard of care expected to prevent the conduct.
The subtle nuances between an OHSA prosecution and a criminal prosecution are worth noting. During a criminal prosecution, your Charter rights are activated. Therefore, the police cannot compel you to speak, nor can they question you without first informing you of your right to speak to counsel. During an occupational health and safety investigation, the investigator can compel you speak without counsel and they may compel you to produce documents without infringing on your Charter rights. In either instance, if you or your organization are facing charges, it is recommended that you obtain legal advice on how to best proceed.
On the face of it, the OHSA prosecution could seem more daunting in this case. However, an OHSA conviction has a maximum fine of $500,000 for a corporation, whereas a Criminal Code conviction has no maximum. Further, if it is a national organization, a federal prosecution may lead to investigations in other jurisdictions and a conviction could be used as an aggravating factor on a subsequent sentencing arising out of a different incident.
Ultimately, it appears that prosecutors working on OHSA and Criminal Code prosecutions are collaborating to obtain results, especially in the form of plea bargains. Guilty pleas under the OHSA may lead to a stay in the criminal proceedings, as was the case in R. v Fantini.
We are not counsel to either the President or the Corporation, but it is likely that the President pled guilty on the OHSA charges at least in part to avoid the far more significant potential liability under the Criminal Code.
Whether under the OHSA (or similar legislation in other jurisdictions), or the Criminal Code, all organizations should be taking all immediate steps necessary to ensure they are complying with all applicable legal requirements in order to mitigate the risk of workplace accidents and the legal liability that often follows. As we have seen with this case, it is not only criminal and regulatory (quasi-criminal) liability that can result. Civil law suits can also result. Two law suits were filed as a result of this Incident, with the plaintiffs seeking nearly $19 million in damages.