A $200,000.00 fine was "manifestly unfit", the Ontario
Court of Appeal has ruled, in raising Metron Construction's
fine to $750,000 for criminal negligence after four workers died on
Christmas Eve, 2009. The $200,000 fine imposed by the
sentencing judge failed "to convey the need to deliver a
message on the importance of workplace safety."
The workers died when a swing stage – a suspended scaffold
– collapsed fourteen floors up a building when six workers
boarded, whereas the usual practice was only two workers.
Three of the four workers who died had marijuana in their system at
a level consistent with having recently ingested the
drug. The court noted that all of the workers were of
limited financial means.
Metron pled guilty to criminal negligence charges, under
provisions added to the Criminal Code in 2004 by Bill
C-45. The only issue on the appeal was the amount of the
fine. Metron's owner had pled guilty to four charges
under the Occupational Health and Safety Act and was
personally sentenced to pay a fine totaling $90,000. All
criminal charges against the owner were withdrawn.
The appeal court noted that criminal negligence was "a
different and more serious offence than those found under" the
Occupational Health and Safety Act, for which the
"cases revealed a range of fines between $115,000 and $425.000
for cases involving fatalities."
The sentencing judge had made two main errors in imposing a
$200,000 fine, the appeal court said. First, although the
sentencing judge was entitled to consider the range of fines
imposed under the Occupational Health and Safety Act, he
failed to appreciate the "higher degree or moral
blameworthiness and gravity associated" with Metron's
conviction for criminal negligence causing death. Second, the
sentencing judge was wrong to consider Metron's "ability
to pay", which was a factor that courts could consider in
setting the fine for individual persons but not corporations in
criminal negligence cases.
The sentencing judge was, however, entitled to consider the
"economic viability of the organization and the continued
employment of its employees." Interestingly, the appeal court
held that in appropriate cases, it was permissible for criminal
negligence fines to bankrupt a corporation. In this case, the
financial statements submitted by Metron were "heavily
qualified and incomplete" and suggested that there were no
employees being paid anymore. As such, "[a]ny public
interest in the continued viability of [Metron] was not
Finally, the appeal court noted that the criminal negligence of
the site supervisor, for which Metron was responsible, was
"extreme". Three times as many workers were on the
swing stage than there were lifelines available, and only one of
the lifelines was properly engaged.
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