In December 2009, four workers fell to their deaths while
repairing balconies at an apartment complex in north Toronto. The
accident was caused by the site supervisor's negligence (he
died in the accident). The construction company, Metron
Construction Corporation, and its president and sole director, Joel
Swartz, were charged under the Occupational Health and Safety
Act and Criminal Code on the basis of the site
Swartz and Metron pleaded guilty. Swartz was convicted of four
counts under the Occupational Health and Safety Act and
fined $90,000 (plus the 25% victim fine surcharge). This was
the highest fine ever imposed against an individual under the
Act. Swartz and the Crown made a joint sentencing
submission, which the sentencing judge accepted.
Metron pleaded guilty to criminal negligence causing death under
the Criminal Code, but Metron and the Crown disagreed on
the fine. The Crown sought a fine of $1 million. Metron argued for
a fine of $100,000. The judge imposed a fine of $230,000, including
the victim fine surcharge. The judge based his decision, in part,
on the fact that a fine of $1 million " would likely drive
[Metron] into bankruptcy".
The Crown appealed. The Court of Appeal, in a decision released on September 4, 2013, agreed
with the Crown that the fine was too low and ordered Metron to pay
$750,000. In coming to this conclusion, the Court of Appeal
considered the factors relevant to sentencing corporations for
The sentencing judge used fines under the OHSA as
a benchmark. The Court of Appeal rejected this approach, saying
that the Criminal Code is intended to "provide
additional deterrence for morally blameworthy conduct".
Though the Criminal Code provides that ability to pay
is relevant to fines against individuals, the Court found that the
same prerequisite does not apply to corporations.
The Court of Appeal held that the prospect of the corporation
going bankrupt is not irrelevant. Though it is one factor to be
considered, it is not determinative. In this case, the Court found
that there was no obvious public interest in the continued
viability of Metron (i.e., it had a few employees and there was no
evidence of its importance to the community or its value as a
source of supply or as an industry participant).
The Court of Appeal concluded that the $200,000 fine was simply
too low, given the seriousness of the offence. Four workers died.
Two more were injured. The accident was preventable. As the Court
concluded, the sentence of a fine of $200,000 was "manifestly
Metron is only the second case decided under the
criminal negligence provisions of the Criminal Code and
the first where the parties did not agree on the sentence. Given
cases are very fact-based, it is difficult to know how much impact
this decision may have for fines resulting from workplace
accidents. It does seem to signal the Crown's desire to impose
more significant penalties. It seems clear that the Crown, and the
courts, are determined to ensure that employers understand that, in
certain circumstances, workplace accidents, even those caused by
mid-level employees, may result in serious penalties, even if the
fine would financially impair the company.
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