Death sentences

Criminalization of workplace accidents

By Jeremy Warning

On Sept. 4, 2013, the Court of Appeal for Ontario released its decision in the sentence appeal in R. v. Metron Construction Corporation. Government prosecutors had appealed against the $200,000 fine imposed on Metron for a charge of criminal negligence causing death. The Court rejected the lower penalty as unfit and increased the fine to $750,000.  The decision addresses a number of key points and should interest all Canadian employers.

Metron was contracted to restore concrete balconies. The work would be done from swing stages. Two of the swing stages were secured from an Ottawa-based supplier.  These swing stages did not have serial numbers or anything to describe their maximum capacity. They were also delivered without manuals, instructions or design drawings. On Christmas Eve of 2009, six workers were on a swing stage approximately 13 storeys above the ground. The swing stage collapsed and five of the workers fell to the ground. Four workers were killed and a fifth suffered serious injuries. The sixth worker, the only one connected to a fall arrest system, was not injured.

The investigation into the accident determined that, shortly before the accident, three of the four deceased, including the site supervisor, had consumed marijuana.  The investigation also determined that a significant cause of the collapse of the swing stage was its defective design and inability to withstand the combined weight of the men and their equipment.  Criminal negligence charges were laid.

In June, 2012, Metron pleaded guilty to a charge of criminal negligence causing death.  As part of the guilty plea, it was agreed that Metron’s site supervisor had been criminally negligent by:

1.  Directing or permitting six workers on the swing stage when he knew, or should have, that it was unsafe to do so;

2.  Directing or permitting six workers to board the swing stage knowing that only two lifelines were available; and

3.  Permitting workers under the influence of drugs to work on the project.

It was agreed that Metron had taken a number of positive safety-related steps prior to the accident. These included requiring an engineering inspection before commencing work and arranging for swing stage and fall protection training for the project manager, site supervisor and workers.

The $200,000 fine was imposed in July, 2012, after a sentencing hearing in which the Crown sought a fine of $1 million. Metron argued that the appropriate penalty was a fine of $100,000.  The Crown appealed.

The Crown appeal of the $200,000 fine asserted that the sentencing court had committed legal errors and imposed a sentence that was manifestly unfit.  The Court of Appeal agreed and allowed the appeal.  Key points of the decision are discussed below.

(a) Criminal offences are more serious

The Court distinguished between regulatory health and safety violations and criminal negligence causing death. It held that health and safety legislation is to establish and enforce standards of health and safety in the workplace, whereas criminal negligence provides “additional deterrence for morally blameworthy conduct.” The Court also noted that criminal negligence causing death is “one of the most serious offences in the Criminal Code” and is “at the high end of moral blameworthiness.” The Court determined that the $200,000 fine resulted from error because it did not reflect the seriousness of the offence committed.

(b) Corporation bound by conduct of supervisor

The decision also confirms the expanded scope of corporate liability under the 2004 Bill C-45 amendments to the Criminal Code. Based on his position and responsibilities, the site supervisor met the Criminal Code test to attract liability for criminal negligence to Metron.  The Court of Appeal commented that the “intent of Bill C-45 is to trigger responsibility by the corporation for the conduct and supervision of its representative.” The Court also held that the site supervisor’s position within Metron could not diminish the gravity of the offence.

(c) Employers can be bankrupted by criminal penalties

When sentencing an organization, the Criminal Code requires the courts to consider “the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees”.  The Court of Appeal found that the sentencing court placed too much emphasis on ability to pay because it thought it was precluded from imposing a sentence that might result in Metron’s bankruptcy.

This is a chilling development because Metron’s criminal liability was based solely on the actions of the site supervisor – actions that displaced a fairly significant number of positive steps taken by Metron. It is all the more chilling because there is no due diligence defence to a criminal negligence charge.

(d) Sentence manifestly unfit

In weighing the circumstances, the Court of Appeal considered mitigating aspects of the case including:

•   Metron realized no advantage by the offence;

•   There was no evidence of planning or complicity; and

•   The guilty plea saved the time and resources that a trial would have consumed.

The Court also considered the aggravating aspects of the case, which included:

•   Six workers were involved – four of whom were killed and one who was seriously and permanently injured;

•  Metron had operated the faulty swing-stage scaffold for more than two months; and

•   The criminal negligence of the site supervisor was extreme.

On balance, the Court determined that the $200,000 fine failed to send the requisite deterrent message about the paramountcy of worker safety. Indeed, the Court noted that a fine in that amount could even be seen by some companies as a “cost of doing business.” When coupled with the Court’s finding that criminal negligence represents greater moral blameworthiness, employers can expect that sentences imposed for criminal negligence are likely to be substantial.

The case should remind employers to vigilantly ensure that all those in positions of authority at its work sites are abiding by all expected workplace safety standards. Steps that could be taken in this regard include:

•   Ensuring that supervisory personnel are trained in and fully understand applicable company policies and procedures addressing the health and safety risks at the workplace;

•   Reviewing and qualifying the safety-related background and experience of anyone who will hold a position of authority within the company before the person is hired and starts work;

•   Ensuring ongoing monitoring of jobsites by supervision and reporting of that monitoring to designated management personnel;

•   Ensuring that all visits to the workplace by more senior management or another party (such as safety personnel or a consultant) are thoroughly documented;

•   Incorporating the monitoring of job or site health and safety compliance into the performance standard, measure and review for all supervisors.

The defence of due diligence does not apply to crimes of intent. However, a strong record of positive corporate compliance and monitoring behaviour will, in our experience, prove influential when the police or prosecutors are considering criminal negligence charges.

Jeremy Warning practices occupational health and safety law at Heenan Blaikie LLP in Toronto.

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