Criminalizing employer conduct
By Jeremy Warning and Christina Hall
Employers across Canada should be aware of the possible implications arising from the recent guilty plea to corporate criminal negligence charges by Metron Construction Corporation. The guilty plea was entered in an Ontario courtroom on July 13, 2012, and Metron was sentenced to pay a $200,000 fine plus a 15 percent surcharge (please note that, at this time, the Crown is seeking to appeal the fine).
On the same date, the president of Metron was sentenced for four convictions under Ontario’s occupational health and safety legislation. These pleas brought closure to one of the most serious workplace accidents in recent Canadian memory – three workers and a site supervisor were killed, and a fifth worker was seriously injured, on Christmas Eve of 2009 when a swing stage collapsed at a construction site and the workers fell 13 storeys to the ground.
The prosecution of organizations for corporate criminal negligence has been exceedingly rare in Canada to date, despite pressure from the labour movement that such prosecutions be initiated more frequently following serious workplace accidents. Until the Metron case, the only other corporate criminal negligence conviction in Canada, involving a workplace accident, resulted from a guilty plea involving Transpavé Inc., a Quebec manufacturer of concrete bricks, paving stones and ornamental blocks.
In that case, the company was fined $100,000. What makes the Metron guilty plea unique, and its implications so worrisome, is that it suggests that organizations may be at risk of a criminal prosecution and conviction based solely upon the conduct of a single person such as a project or site supervisor or plant, branch or store manager.
By way of background, Canada’s corporate criminal negligence laws are found in the Criminal Code, which applies across the country. Criminal laws are separate and apart from the various occupational health and safety laws that exist in each Canadian jurisdiction.
In 2004, Canada’s corporate criminal negligence laws were significantly overhauled in response to the 1992 Westray coal mine explosion in Nova Scotia, which killed 26 miners. No criminal or regulatory convictions were obtained against Westray or its management. However, in 1997, the public inquiry into the explosion found that Westray’s management had intentionally subverted health and safety prior to the explosion.
With this in mind, the Canadian Parliament moved to strengthen corporate criminal negligence laws through what became known as the Bill C-45 amendments. Prior to the amendments, in order to convict an organization of corporate criminal negligence, it was necessary to prove that a “directing mind” of the organization showed wanton and reckless disregard for the lives or safety of other persons. It was often difficult to establish that a “directing mind” – that is, a person with sufficient authority to be considered the alter ego of the organization – had actually engaged in the criminal conduct.
The Bill C-45 amendments, which became law in 2004, established a new, two-part, test. Under the first part of the test, a prosecutor must prove that a representative of the organization has acted – either alone or through the cumulative conduct of several representatives – with wanton and reckless disregard for the lives or safety of any person. Under the second part of the test, a prosecutor must prove that a senior officer of the organization markedly departed from the reasonable standard of care expected to prevent the harm caused by the representative(s). The term, “senior officer,” is defined in the legislation to include management with responsibility for “an important aspect of the organization’s activities.” This is a broad definition that can include management representatives with only localized authority, such as a project or site supervisor.
Turning back to the Metron case, it is precisely this broad definition of “senior officer” in the second part of the new corporate criminal negligence test that leads to the troubling implications arising from Metron’s guilty plea. From the agreed facts submitted to the court by the prosecution and Metron, it is clear that the first part of the corporate criminal negligence test was satisfied due to the conduct of Metron’s site supervisor. His behaviour rose to the level of “wanton and reckless disregard for the lives or safety of any person.”
Specifically, the agreed facts stated that the site supervisor had: directed or permitted workers and materials on the swing stage in excess of the swing stage’s capacity; directed or permitted workers on the swing stage when there was an insufficient number of lifelines (only two for six workers); and permitted workers under the influence of drugs to work on the project (a post-mortem toxicological analysis confirmed that three of the workers, including the site supervisor, had recently ingested marijuana prior to the accident).
However, when it came to the second part of the corporate criminal negligence test, the agreed facts again referred to the conduct of the site supervisor, on the basis that he was responsible for managing an important aspect of Metron’s activities – specifically, the construction site where the accident occurred.
By accepting Metron’s guilty plea and registering a conviction against Metron on the basis of the agreed facts, the court implicitly accepted the validity of the premise that the behaviour of a supervisor alone can, effectively, satisfy both roles required by the corporate criminal negligence test: the supervisor can be both a “representative” of the organization and a “senior officer.” This ought to be worrying for employers because it is quite common for operations to be supervised by a person with a high degree of local responsibility.
It is difficult to overstate the concern this should cause because there is no defence of due diligence available to an organization charged with criminal negligence. Whereas an organization may be able to defend itself against occupational health and safety charges on the basis that it took all reasonable care to prevent a contravention, the same is not true in a criminal proceeding.
In fact, in the Metron case, the agreed facts reveal that, far from having a corporate culture that ignored or took a lackadaisical approach to health and safety, Metron had taken a number of pro-active health and safety measures. These measures included making arrangements for safety training for the site supervisor and others on the site, requiring the owner of the building to arrange for an engineering inspection and recertification of the roof anchors before the work began and providing full cooperation to the Ministry of Labour inspector who periodically visited the project. Metron’s president also visited the project at least once per week.
At this time, it remains to be seen whether the result in the Metron case will lead to increased incidence of police and prosecutors pursuing corporate criminal negligence charges against organizations following workplace accidents. In the meantime, however, employers would be well-advised to review and strengthen their supervisory training programs, health and safety policies and, in particular, monitoring practices and compliance audits to confirm on-site compliance with occupational health and safety laws and safe work practices.
This will assist companies with ensuring that their preventative health and safety measures are well developed, applied properly and consistently, and monitored appropriately.
Jeremy Warning and Christina Hall practice labour and employment law in the Toronto office of Heenan Blaikie LLP and are members of the firm’s national OHS & Workers’ Compensation Practice Group.