A supervisor's violation of the Occupational Health and
Safety Act can ground a criminal negligence charge against
him, an Ontario preliminary inquiry judge has decided, sending the
criminal charges to trial. We reported on this case in
January; the court's reasons for decision were recently made
The criminal negligence charge was laid against the Project
Supervisor of Metron Construction after five workers fell 13
stories to their deaths when a suspended scaffold collapsed on
Christmas Eve, 2009.
The Crown and the defence agreed that in order for the Project
Supervisor to be guilty of criminal negligence, the Crown must
prove that, by act or omission, he failed to perform a duty, and
that if the failure was an omission, the failure was "wanton
The court decided that evidence of the Project Supervisor's
failure to ensure that all workers were tied to lifelines was
sufficient proof of criminal negligence causing death that the
charges should proceed to trial. The court found that
the duty to ensure that workers were connected to lifelines
was set out in the Occupational Health and Safety Act and
in the rules of the Construction Safety Association of Ontario.
The Project Supervisor's consent, tacit or otherwise, to at
least 5 workers using the swing stage with their equipment to
ascend or descend 14 or more stories without the protection of
lifelines was a marked and substantial departure from reasonable
The judge stated that safety regulations "do not establish
criminal standards", meaning a violation of a safety
regulation will not automatically ground a criminal negligence
charge; that will be of some comfort to employers and supervisors.
However, in this case, there was evidence of a "substantial
departure from the norm" and "wanton disregard",
factors that effectively could turn the breach of
theOccupational Health and Safety Act duty into
We will provide further updates on this important and
high-profile case as they become available.
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