Canada: Punishment And Defence – Recent Developments In Occupational Health And Safety

Last Updated: December 27 2012
Article by Michelle McCann

Workplace health and safety has always been a concern of owners in the construction industry, especially in light of strict legislation across Canada. In 2012, we have seen a number of significant penalties resulting from an infraction of health and safety regulations, a workplace accident or a fatality on the construction site. It has become abundantly clear that owners are ultimately responsible for workplace safety on their work sites. It continues to be difficult – but not impossible – to mount a defence where an infraction has been noted or an injury has occurred.

Two recent cases emphasize the importance of the owner's role in monitoring health and safety on the work site and establishing policies and procedures geared towards a safe work environment.

The first, R v Metron Construction Corporation, 2012 ONCJ 506 ("Metron"), demonstrates that a corporation can be criminally responsible for the actions of an independent contractor on the work site. The lesson is to choose your site supervisor carefully, and to ensure he/she is working within established safety guidelines.

The second, Guild Contracting Specialties (2005) Inc. v. Nova Scotia Occupational Health and Safety Appeal Panel, 2012 NSCA 94 ("Guild"), demonstrates that the due diligence defence is alive and well and that the regulatory bodies established through occupational health and safety legislation cannot create process or procedures that limit the owner's ability to put such a defence forward. However, to take advantage of the due diligence defence, the owner must be able to demonstrate an active effort to participate in health and safety on the work site, by ensuring that all representatives of the company are following legislation, implementing safety policies and developing clear preventative measures to avoid accident or injury.

Overview of health and safety penalties

In most provinces legislation provides for three types of penalties:

  • administrative penalties under occupational health and safety legislation: generally imposed where there has been a minor injury or a noted infraction, these penalties range between $250 and $4,000 per infraction in Atlantic Canada.
  • penalties for committing a statutory offence: these "quasi-criminal" charges proceed through the courts, and it is the court that decides the fine and other consequences. Each of the Atlantic provinces caps the fine at $250,000 for each offence. However, additional fines can be imposed for each day that the offence continues. The courts are also given discretion to impose "creative" penalties, such as additional fines for health and safety education or a requirement to publish all facts of the accident. In rare cases, an individual who has committed an offence can be imprisoned.
  • criminal negligence: these charges proceed under the federal Criminal Code, and are exceedingly rare despite amendments in 2004 that made it easier to charge a corporation with criminal negligence. To succeed the Crown must prove:
    • the conduct of a "representative", acting within the scope of their authority, showed wanton and reckless disregard for the lives or the safety of others; and
    • a "senior officer" departed markedly from the reasonable standard of care expected to prevent

Where criminal negligence is proven, the court sets the fine or other penalty, with reference to a number of factors set out in the Criminal Code to account for when sentencing an organization, including:

  • any advantage realized by the organization as a result of the offence;
  • the duration and complexity of the offence;
  • the degree of planning involved in carrying out the offence;
  • whether the organization attempted to conceal its assets to encourage a lower penalty;
  • the impact the sentence would have on the economic viability of the corporation and the continued employment of its employees;
  • the cost of investigation;
  • other regulatory penalties that have been imposed on the organization; and
  • whether the organization or any of its representatives have been convicted of a similar offence or previously sanctioned under provincial legislation for similar conduct.

Overview of defences

  • Due diligence: it is open to the owner to argue that it made every effort to prevent every infraction and to prevent harm. If the owner can demonstrate such due diligence, there has been no violation of any statute and the criminal charges or administrative sanctions should be dropped. To succeed in this defence, the owner must demonstrate it took all reasonable steps to ensure a healthy and safe worksite.
  • Reasonable care: where an owner has been charged with criminal negligence, it is also open to the owner to prove that there was not wanton or reckless disregard for the lives or safety of other persons on the part of any of its representatives. Effectively, if the owner can show there was no intent to violate legislation or cause harm, the criminal negligence charges will not succeed. Note, this defence is not available for statutory offences or administrative penalties, as there is no requirement to prove intent for owners to be penalized.

Metron- owner criminally liable for actions of supervisor

This summer, the Ontario Court of Justice reviewed the tragic circumstances that resulted in the death of construction workers on Christmas Eve, 2009. At the end of the work day, the site supervisor and five of his workers climbed onto a swing stage to travel back to the ground. Shortly afterwards the platform collapsed. Five men fell 14 floors to the ground. Four of them died as a result of their injuries and a fifth suffered serious injury. The sixth person had properly attached himself to a safety line and was prevented from falling – he was, therefore, uninjured.

The investigation into the incident revealed three serious safety hazards that resulted in this tragedy:

  • The swing stage used was not up to code. Although appearing new, it had no serial number or other identifier as required by health and safety legislation and by industry practice. It arrived without a manual, instructions or other product information or design drawings, which are specifically required under legislation. Testing of the swing stage revealed that it hadn't been properly constructed and was not safe to transport six workers.
  • Only two lifelines were available for the swing stage. The normal practice on site was for only two workers to be on the swing stage at any time. It was inexcusable for the supervisor to allow six people to use the swing stage simultaneously without appropriate lifelines.
  • Drug use: a toxicological analysis determined that three of the employees had marijuana in their systems.

Metron plead guilty to the criminal negligence charges, acknowledging that the site supervisor was directing the workforce and that he permitted the three infractions. Metron proposed a fine of $100,000 on the grounds that the "real responsibility" for the accident lay with the faulty swing stage. The Crown proposed a fine of $1 million, noting the serious infractions and the tragic consequences of those infractions.

The court settled on a fine of $200,000 plus a victim fine surcharge of $30,000 noting that the fine represents three times the net earnings of Metron in its last profitable year.

Owners should note that Joel Swartz, the president and sole director of Metron, also entered a guilty plea to several quasi-criminal charges under Ontario's Occupational Health & Safety Act. His fines and surcharges totalled $112,500.

In both the criminal and quasi-criminal charges, all parties agreed that it was the conduct of the site supervisor that directly resulted in the accident. The site supervisor was not an employee of Metron, but was an independent contractor that Metron had contracted with to oversee the work on the site. Nevertheless, it was agreed that he was both a representative and senior officer of Metron. Since there was a guilty plea there was not legal analysis, leaving open two possible arguments in defence:

  1. It is arguable that an independent contractor is not a "senior officer" of a corporation. If this argument is accepted and it can be shown that all senior officers demonstrated reasonable care, a defence may be possible in a similar situation.
  2. There is a technical argument that suggests section 22.2 of the Criminal Code sets out a two part test that requires first, wanton and reckless disregard for safety by the representative, and, second, that a senior officer departed markedly from the reasonable standard of care. The technical argument is that this involves an action by two people – first a representative, then a senior officer – and not an action by a single supervisor fulfilling both roles.

Whether either argument could be successful is a question for a future case. Note, however, that Metron is only the second case to proceed under the Criminal Code's new negligence provisions and may create a precedent that is difficult to depart from.

Guild: defence of due diligence still strong

In September 2012, the Nova Scotia Court of Appeal released a decision concluding that there is no reason that the labour board considering an appeal of an administrative penalty under Nova Scotia's Occupational Health and Safety Act ("OHSA") should be limited to considering the amount of the penalty. The court reasoned that by limiting an appeal to the amount of the fine where a compliance order hadn't been appealed, the panel had effectively prevented employers from raising a due diligence defence, which is not "justifiable or permissible under the legislation as it presently exists".

In Guild, the employer was charged with failing to have an appropriate eyewash available on site. A compliance order was issued and Guild complied with the order, obtaining an eyewash station that could flush the eye for 15 minutes per the compliance order's requirements. Compliance orders are a direction to the employer to take an action that will bring the employer into compliance with occupational health and safety legislation and/or create a more safe work environment. They generally provide a strict time limit for compliance.

Guild filed a compliance notice advising that they had complied with the compliance order. It was more than two months later before an administrative penalty was issued.

Guild appealed the administrative penalty under section 11 of the Occupational Health and Safety Administrative Penalty Regulations.

Guild put forward the due diligence defence that, although they did not have an eyewash station that could clean the eye within 15 minutes at the time that their site was inspected, it was not needed at that time because there were no dangerous substances on-site that would require that level of eye washing. Guild submitted that the eye-wash station on-site was compliant with the OHSA and its regulations when no hazardous substances were on-site.

Guild's argument was not considered and the panel deciding the case stated that it wouldn't consider the validity, appropriateness or necessity of the underlying compliance orders during an administrative penalty appeal. The only issue the panel was willing to consider was whether the amount of the penalty was appropriate.

The director submitted to the Court of Appeal that if an appellant chooses not to appeal a compliance order, then the finding in the compliance order that there has been a contravention of the OHSA or its regulations becomes final and binding and there is no further avenue of appeal.

Justice Farrar concluded that:

Quite frankly, I cannot on reviewing the record, the OHSA and the submissions of the parties, see how this conclusion could be reasonable.

The court's language is strong. Justice Farrar says that the panel's reasons for its position are "non-existent". Their conclusion could not fall "within the realm of any reasonable outcome" and there is nothing in the OHSA or its regulations that suggest it is correct for the panel to effectively eliminate the due diligence defence at the appeal of administrative penalty stage.

What this means for you

The Guild case shows that the defence of due diligence is available to owners. To exercise this defence, you must be able to prove that you took every reasonable step to ensure compliance with occupational health and safety legislation and to ensure a safe and hazard-free workplace. With that in mind, owners may want to review their procedures for supervising work sites and have contractors sign off on specific policies or procedures for ensuring a safe work site. Given the Metron case, there is a very real risk that in the future owners will be held responsible for the actions of any subcontractors or independent contractors that they work with and may want to have a better understanding of the safety records and practices of those subcontractors to better protect themselves against the possibility of health and safety violations on their work sites.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Michelle McCann
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions