On Christmas Eve, 2009, a swing stage (a work platform)
suspended at the 14th floor of an Ontario apartment
building collapsed. Four workers, including the site
supervisor, died after falling to the ground. Metron
Construction was charged with criminal negligence causing death
under Canada's Criminal Code. Metron's owner
and sole director, Joel Swartz, was charged under Ontario's
Occupational Health and Safety Act. Both pled
guilty. In two decisions, R. v. Metron (PDF) and R. v. Swartz (PDF),
both were fined significantly. The basis for the charges and
fines? The expanded scope of criminal liability under the
Criminal Code, which is no longer confined to the
"directing mind" of a corporation. Here it applied
to an independent contractor.
Metron had contracted to restore certain concrete balconies on
two high rise buildings. Metron employed two permanent
employees, both of whom worked in its office. All others were
independent contractors. Of particular note, Metron contracted
with an individual to serve as the project manager. The project
manager in turn contracted with another individual to serve as the
site supervisor. The site supervisor had his own construction
The swing stage that collapsed had been rented from an
independent company. It arrived appearing new. However it lacked
any markings regarding the stage's maximum capacity and arrived
without a manual or other product information.
There were only two lifelines on the swing stage despite the
presence of six workers.
Toxicological reports showed that the site supervisor and two of
the three workers who died had marijuana in their systems at levels
consistent with having recently ingested the drug.
On the plus side, Metron had taken some positive steps before
the accident, including arranging a fall arrest course for the
project manager, site supervisor and its workers and giving safety
manuals to its workers. Metron's president, Joel Swartz,
had attended the site weekly and did not observe any workplace
The Expanded Scope of Criminal Negligence
Bill C-45 amended Canada's Criminal Code and became
law on March 31, 2004. The Bill significantly expanded the
scope of criminal liability for employers and was intended to make
criminal negligence convictions against employers easier to
obtain. This objective has clearly been met in this case.
Metron was liable based mainly on the behaviour of its site
supervisor, an independent contractor. According to the court, the
site supervisor failed to take reasonable steps to prevent bodily
harm and death by:
directing and/or permitting workers to work on the swing stage
when he knew or should have known that it was unsafe to do so;
directing and/or permitting six workers to board the swing
stage knowing that only two lifelines were available; and
permitting persons under the influence of drugs (including
himself) to work on the project.
There was no suggestion that Metron's owner and sole
director, Mr. Swartz, was aware of these actions.
Notwithstanding the above, both Metron and Mr. Swartz were
charged and convicted. In the result, Metron must pay
$200,000, plus a 25% victim fine surcharge, in connection with a
conviction of criminal negligence causing death under Canada's
Criminal Code. Mr. Swartz must pay $90,000, plus a
victim fine surcharge, in connection with four convictions under
Ontario's Occupational Health and Safety
Lessons for Employers
There are a number of lessons that employers should take from
the Christmas Eve tragedy and its aftermath:
Employers across Canada can be criminally liable for the
actions of those who work for them, whether employees or
independent contractors. An employer cannot escape criminal
liability by contracting with independent contractors that in turn
contract with others.
Employers can be criminally liable for the actions of their
local managers or supervisors. Site supervisors – as
well as store, branch or plant managers – typically carry
a high degree of local responsibility over a site, project or
plant. They typically have few, if any responsibilities in the
corporate hierarchy of an organization. Nevertheless, their
actions can have criminal consequences for their employers.
Investments should be made in health and safety management as
well as safety training and prevention. Employers should ensure
that all supervisors are fully aware of their safety obligations
and adhere to these obligations at all times, which includes
remedying safety concerns as soon as they are
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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