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:
- any advantage realized by the organization as a result of the offence;
- the degree of planning involved in carrying out the offence and the duration and complexity of the offence;
- 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;
- the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees;
- the cost to public authorities of the investigation and prosecution of the offence;
- any regulatory penalty imposed on the organization or one of its representatives in respect of the conduct that formed the basis of the offence;
- 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;
- any penalty imposed by the organization on a representative for their role in the commission of the offence;
- any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the offence; and
- 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.
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.
