On Friday, June 15, 2012, Metron Construction entered a
guilty plea to one charge of criminal negligence causing death
under the Criminal Code as amended by Bill C-45. At the same time,
its President, Mr. Joel Swartz, P.Eng. pleaded guilty to four
contraventions of the Ontario regulatory statute,
Occupational Health and Safety Act (OHSA). The criminal and
regulatory charges relate to the Christmas eve tragic death of 4
workers when a scaffold broke and workers fell since they were not
using a fall protection.
The President has not yet been sentenced; however, a joint
submission by the Prosecution and the Defence was made for
fine of $22,500 per charge. The proposed fine against Metron's
President will, if imposed, set a new high water mark for a
sentence against any individual, let alone a director and officer
under an OHS statute in Canada.
Metron Construction has not yet been sentenced on its guilty
plea to the criminal negligence charge. Under the
Criminal Code there is no maximum fine that may be imposed
upon a convicted organization. The Criminal Crown has sought
a penalty of $1 million; the defence has not yet completed their
submissions on sentencing.
This landmark case is the second corporate guilty plea in
Ontario under the Bill C-45 amendments to the Criminal Code that
took effect on March 31, 2004. If imposed, a corporate sentence of
one million dollars will represent the highest penalty for criminal
negligence causing death for a workplace accident in Canadian
history. The only other prior corporate criminal negligence
conviction in such a matter, on a guilty plea in 2008, was
Transpave, resulting in a fine of $100,000.00 in Quebec.
Criminal charges against the supervisors are still pending and a
preliminary hearing commenced on May 7, 2012 in Toronto and is
ongoing. In this hearing a judge will assess if there is sufficient
evidence for the matter to proceed to a criminal trial.
Background to the Guilty Plea
Metron Construction Corporation and three individuals related to
the company were charged with criminal negligence causing bodily
harm and four counts of criminal negligence causing death. The
charges arise from the deaths of four migrant workers and the
critical injury of another, following the collapse of a swing stage
scaffold on the 13th floor of a Toronto apartment building on
Christmas Eve of 2009. The incident received national media
coverage. The Government of Ontario appointed the University of
Toronto's Tony Dean to conduct an inquiry into workplace safety
prevention initiatives after this incident.
A crew of six men was working on repairing the balcony at 2757
Kipling Avenue when the incident occurred. A sixth worker escaped
unharmed. The incident occurred when a seventh worker attempted to
step onto the swing stage, causing it to break into two pieces, and
the four workers fell to their death.
In August, 2010, 61 OHSA charges were laid against various
parties as a result of the same accident. Thirty charges were laid
against Metron Construction Corporation, with an additional 16
against a Metron senior manager and 8 against a supervisor.
The Ministry of Labour has never previously laid any OHSA
charges against Metron in its 23 years of operation. However, in
the two months leading up to the deadly incident, eight orders,
including some dealing with swing stages, have been issued to
Metron Construction at the job site in question.
These charges mark another instance that a corporation or an
individual has been charged with contravention of the Bill C-45
amendments to the Criminal Code. To date, none of these cases have
proceeded to trial. Bill C-45 was the legislative reaction of the
federal government to the Westray Mine disaster. In May 1992, 26
miners died when an explosion and fire ripped through that coal
mine in Pictou County in Nova Scotia. Criminal charges in that case
were thrown out at trial due to prosecution misconduct.
Gowlings recommends that all Presidents, Directors and Officers,
and Corporations immediately take the following steps to mitigate
risk of similar incidents, prosecutions and legal liability:
Have an external, experience law firm conduct an OHSLAW Gap
AnalysisTM to determine the level of compliance with
legal requires under the OHSA, that is protected by solicitor and
Fill the Gaps in OHS law compliance by developing/improving OHS
Policies, Safe Work Procedures, and Accountability through an OHS
Conduct and document training for all operations Managers,
Supervisors and Workers to ensure that you meet or exceed all
OHS training requirements in law;
Brief the Board of Directors of these actions and commit to an
annual review of OHS Policies, Procedures and Program, as required
by the OHSA and related Regulations and best practices.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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