• Crown Seeks $1 Million Fine after Workplace Accident Results in Four Fatalities
  • September 21, 2012 | Author: Chad M. Sullivan
  • Law Firm: Stewart McKelvey - Fredericton Office
  • The recent Ontario Court of Justice ruling in R. v. Metron Construction Corporation makes it is clear that changes made by Bill C-45 to the Criminal Code have not only made it easier to find a corporation guilty of criminal negligence, but have also significantly increased the penalties facing offenders.

    The facts

    While repairing a section of a high rise apartment building in Toronto, four employees of Metron Construction Corporation ("Metron") fell to their death and one worker was critically injured after the scaffolding they were standing on collapsed.

    Metron and its president were charged with five counts of criminal negligence in relation to the accident. Both parties were also charged with contravening the Occupational Health and Safety Act.

    An investigation by the Ministry of Labour determined that the workers were not adequately tied off to a lifeline or adequately trained in using the protection available. It also found that the swing stage that had collapsed was over capacity and defective.

    The decision

    Bill-C-45 was introduced in 2004 and amended the Criminal Code by eliminating the prosecutor's duty to prove that a person was the directing mind of a corporation and extend attribution of criminal corporate liability to the actions of mid-level managers.

    In this case, it was the site supervisor (one of the deceased)whose conduct attracted liability for the corporation. The supervisor was found to have acted negligently in supervising the workers when allowing them to board the swing stage when it was over capacity and without the use of adequate safety equipment.

    The Crown asked for a fine of $1 million while the Defence asked for a fine of $100,000.

    The court considered the following factors that are provided in section 718.21 of the Criminal Code:

    a. any advantage realized by the organization as a result of the offence;
    b. the degree of planning involved in carrying out the offence and the duration and complexity of the offence;
    c. whether the organization has attempted to conceal its assets, or convert them, in order to show that it is not able to pay a fine or make restitution;
    d. the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees;
    e. the cost to public authorities of the investigation and prosecution of the offence;
    f. any regulatory penalty imposed on the organization or one of its representatives in respect of the conduct that formed the basis of the offence;
    g. whether the organization was - or any of its representatives who were involved in the commission of the offence were - convicted of a similar offence or sanctioned by a regulatory body for similar conduct;
    h. any penalty imposed by the organization on a representative for their role in the commission of the offence;
    i. any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the offence; and
    j. any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence.

    The judge set the fine at $200,000 plus surcharges. Many of the above noted factors worked in Metron's favour including that Metron was in a weak financial position.

    The fine imposed on Metron is the largest in Canadian history that relates to criminal negligence of a corporation.

    What this means for you

    In light of the decision in Metron, organizations must ensure that a viable health and safety program is not only developed, but is also implemented by its employees and any representatives of the organization.

    The relaxation of the standards required to prove a corporation's guilt, coupled with the apparent willingness of the court to impose hefty fines to punish breaches, means that corporations must be more cautious and proactive than ever.