Loretta Bouwmeester, Calgary
Daniel C.P Stachnik, Edmonton
Alexandra Fox
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:
i) 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;
ii) 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
iii) 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.
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