With the introduction of the Bill C-45 amendments to the
Criminal Code, occupational health and safety regulation,
prosecution and conviction have been on the rise across
Canada. Recently, Vale Canada Limited and Metron Construction
were given record fines in occupational health and safety and
criminal negligence convictions, respectively. In Vale's case,
the company entered a plea of guilty and agreed to pay a fine of
$1,050,000 for a double fatality, when an uncontrolled release of
broke rock, or "muck", buried one worker and struck and
killed another worker in a Sudbury area mine. In Metron
Construction's case, the company pleaded guilty to one count of
criminal negligence causing death, under the Criminal Code
of Canada, in relation to the death of four workers who fell when a
swing stage scaffold collapsed. In their decision on a sentence appeal, the Court
of Appeal for Ontario increased the fine against Metron
Construction from $200,000 to $750,000, describing the higher fine
as a "fit fine in the circumstances".
Occupational Health and Safety Conviction - The Vale Case
In the Vale case, the Ministry of Labour press release announced
the fine as the highest fine levied by a Court in Ontario for
contraventions of the Occupational Health and Safety Act.
Vale's size, the double fatality, and the prior record of
convictions were all considered aggravating factors that increased
the size of the fine to set the new record.
Criminal Negligence Conviction - The Metron Case
In the Metron case, the Crown appeal resulted in the increased
fine of $750,000. Ironically, this fine, for four deaths and
a critical injury, was still lower than the regulatory fine against
Vale. Metron was a very small construction company, with no prior
record, and financially vulnerable condition. Those factors,
along with a President that also pleaded guilty, were all
considered mitigating factors by the court in the sentencing.
In the Metron case, the corporation admitted that the supervisor
Mr. Fazilov was a "senior officer" of Metron. The
new formula for criminal guilt of an organization requires that a
senior officer departed markedly from the standard of care that
reasonably would have been expected to ensure that representatives
were safe at the work site. In other words, without the
admission that Mr. Fazilov was a "senior officer", the
crown could not have secured a conviction under the Bill C-45
amendments to the Criminal Code.
The Court of Appeal criticized the trial judge on the assessment
of a $200,000 fine, calling it "manifestly unfit". Then
the court came back to the responsibility of Mr. Fazilov, the
supervisor, who was, in our opinion, questionably determined to be
a "senior officer" of Metron. Calling the criminal
negligence of Mr. Fazilov extreme, the court increased the fine
from $200,000 to $750,000. The court seemed to ignore the fact
that Mr. Fazilov and several other workers all tested positive for
measurable amounts of THC, the active ingredient in marijuana and
The tragedy of the four deaths of employees of Metron
Construction has resulted in much controversy, consternation, and
change in Occupational Health and Safety regulation and enforcement
in Ontario, and across Canada. Although the fine against the small
corporation may never be fully recovered (if the company is driven
into bankruptcy by this new, higher fine) the Court of Appeal has
clearly sent a message to employers that when they are convicted of
offences of Occupational Health and Safety criminal negligence,
under the Bill C-45 amendments to the Criminal Code,
punishment may be severe. The other sobering fact is that
there is no upper limit to fines that may be imposed on a
corporation when they are prosecuted under a Bill C-45 offence.
The Implications for Employers
The fine against Vale was likely higher than that against Metron
because of Vale's size and prior record of convictions.
However, since a criminal charge requires proof of intent, the
question may be asked if the Vale decision will result in more
Occupational Health and Safety regulatory charges, which are easier
to prove, than criminal charges.
In either case, employers should be more aware and more
committed to Occupational Health and Safety compliance than ever
before. Steps such as an Occupational Health and Safety policy, a
legal compliance audit, rigorous training and supervision of
workers and ongoing review and improvement of Occupational Health
and Safety practices are all required to prevent accidents and to
establish the defence of due diligence.
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.
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