In an unprecedented application of the Criminal Code (“the Code”), the Ontario Court of Appeal has levied a $750,000 fine against Metron Construction (“Metron”), which was convicted in 2012 of criminal negligence causing death.
At approximately 4:30pm on Christmas Eve in 2009, a swing scaffold at a Toronto high rise restoration project collapsed and 4 workers plunged 14 stories to their deaths. A fifth worker, who was improperly attached to one of only two available safety lines, sustained serious permanent injuries. A sixth worker, wearing the only other available safety line, was uninjured. The scaffold did not display any weight capacity ratings and had been assembled without the benefit of an instruction manual. The scaffold normally only carried 2 workers at a time, but was being used to transport all 6 workers to the ground to finish the project for the day.
As a result of the incident, the owner of Metron pled guilty to 4 counts under the Occupational Health and Safety Act (“OHSA“) and was fined $22,500 for each count. Although the owner was also charged criminally, the charges were dropped. Metron pled guilty to criminal negligence causing death under the Code and was fined $200,000. The Crown appealed the sentence to the Court of Appeal.
The Court of Appeal concluded that in assessing the appropriate fine, the sentencing judge had placed too much emphasis on the range of fines typically imposed under the OHSA for fatality cases. In reaching this conclusion, the Court of Appeal was influenced by a number of factors:
The Court of Appeal further held that a corporation’s ability to pay should not be treated as a prerequisite to the imposition of a fine. While ability to pay is a relevant consideration when levying fines against individuals in order to minimize the number of people who are incarcerated for being in default of payment, the same rationale does not extend to corporations. On the contrary, while the economic viability of a corporation is a factor to be considered, it is not determinative and should not dictate the quantum of the fine. In fact, the Court indicated that not only should the prospect of bankruptcy not preclude the imposition of a higher fine against a corporation, “in some bad cases this may be an acceptable consequence”.
In the circumstances, the Court of Appeal concluded that a fine of $200,000 was “manifestly unfit”. Since a conviction under the Code is more serious than a breach of the OHSA, having regard to the nature and gravity of the offence the Court of Appeal ordered Metron to pay a fine of $750,000 plus the mandated victim fine surcharge.
Although the prospect of directors and corporations being criminally charged has been around for nearly a decade, only rarely have they been charged, let alone convicted. These developments should serve as a stark reminder of the potential criminal implications of negligence giving rise to workplace fatalities.
If you have any questions about health & safety issues, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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