Court Imposes Criminal Code Fines for Workplace Accident
Date: August 20, 2012
In a recent case, R. v. Metron Construction Corporation, the Ontario Court of Justice imposed one of the first sentences rendered under the Bill C-45 amendments to the Criminal Code of Canada. Those amendments impose criminal liability on organizations (including companies) for the actions of their “representatives” or “senior officers” and require that anyone who undertakes or has the authority to direct how another person does work or performs a task must take reasonable steps to prevent bodily harm to any person arising from the work.
In this FTR Now, we discuss the significant potential liability implications of the Metron Construction case for employers.
In late 2009, six workers were repairing concrete balconies on the 14th story of a high rise building. When they were descending, four workers were killed and one was seriously injured when their swing stage (scaffolding) collapsed and fell to the ground. The sixth worker had been properly attached to a safety line and suffered no injuries. A subsequent investigation determined that the swing stage was improperly constructed and that it would not have been safe for two workers to descend on it, let alone six. Moreover, it only had two lifelines available on it. The rented swing stage had also arrived with no manual instructions or other production information, as required by the Occupational Health and Safety Act (“OHSA”). Toxicology reports also indicated that three of the four deceased, which included the site supervisor, had recently ingested marijuana.
Metron Construction, the company overseeing the restoration, was charged under the Bill C-45 amendments and entered a plea of guilty. It became the first Ontario company convicted under these amendments.
The Court noted that, unlike the OHSA, the Criminal Code of Canada(the “Criminal Code“) does not provide for a maximum fine. However, the Code does require the Court to consider the impact of the fine on the financial viability of the organization. Metron only had two permanent employees. Its financial viability appeared uncertain. The Court imposed a fine of $200,000. This amount was more than three times the net earnings of the business in its last profitable year.
In the companion sentencing case, R. v. Swartz, Mr. Swartz, a director of Metron, entered guilty pleas that he failed to take all reasonable care to ensure the corporation complied with the applicable provisions of OHSA and its regulations, which require that an employer ensure that a worker who may use a fall protection system is adequately trained in its use. Mr. Swartz also failed to ensure that training and instruction records were maintained; failed to ensure that the swing stage was not used while it was defective or hazardous; and failed to ensure that, at the time of the accident, the swing stage was not loaded in excess of the load it was designed to bear.
The maximum fine permitted by the OHSA for an individual is $25,000 per count. A fine of $22,500 for each of four counts was imposed. Therefore, the fine was 90% of the maximum. The Court noted it was well above Mr. Swartz’s total income for the last year.
WHAT DOES THIS MEAN?
Given the financial status of the corporate and individual defendants, these were substantial fines. The case underscores the fact that directors do have very real obligations under both the OHSA and the Criminal Code. It remains to be seen whether this decision will encourage the laying of Criminal Code charges in other serious workplace accidents. At the very least, as the Court said, the decision is intended to “send a clear message to all businesses of the overwhelming importance of ensuring the safety of workers whom they employ.”
Should you have any questions regarding this decision or its impact, contact any member of the Occupational Health group.
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