In the first appellate decision relating to the sentencing of a
corporate defendant under the Criminal Code (formerly Bill C45), R. v. Metron Construction
Corporation, the Ontario Court of Appeal addressed the
relevance of "ability to pay" in setting fines where a
corporate defendant pleads guilty. Metron pled guilty to one
count of criminal negligence causing death from a December 24, 2009
accident where 3 workers and their supervisor fell to their
deaths. The sentencing Judge imposed a fine of
$200,000.00. The Crown sought leave to appeal the fine, as
they had originally sought a fine of one million dollars. The
Crown relied on the following aggravating factors: the
accident was totally preventable; the company put into use a swing
stage that did not indicate its load capacity; the swing stage was
assembled without instructions, and the supervisor did not ensure
that the workers wore fall protection. In fact, there were
only 2 sets of fall protection for 6 workers on the swing
stage. Metron argued for a fine in the amount of
In reviewing the sufficiency of the fine the Court noted that
under Ontario's Occupational Health and Safety Act
(the "OHSA") the maximum fine allowable for a corporation
is $500,000.00 whereas the Criminal Code does not set out any
In reviewing the sentence the Court of Appeal concluded that the
Judge, when imposing the original fine, considered the
offender's ability to pay in error, stating that an
organization's ability to pay should not be treated as a
prerequisite to the imposition of a fine. The Court stated
that in the case of a corporation that is a significant employer
and whose viability is seriously threatened by the imposition of a
fine, the quantum of the fine may be reasonably affected. As
well, for a corporation that carries on no or limited business and
has no or few employees, the impact of a fine on the
corporation's economic viability may be of little
consequence. The Court stated that the prospect of bankruptcy
should not be precluded if appropriate.
The Court of Appeal held that the sentencing Judge erred when he
considered that he was precluded from imposing a fine that might
result in the bankruptcy of the corporation. The Court held
that the sentencing Judge placed undue weight on the
Corporation's ability to pay, determined that a fine of
$200,000.00 was "manifestly unfit" and stated some might
treat such a fine as simply a cost of doing business. A fine
of $750,000 was substituted as a fine, "fit in the
This decision represents a departure from sentencing principles
adopted by the courts when a corporation is charged under the OHSA
where ability to pay is regularly considered by the courts in
determining the appropriate fine. It remains to be seen
whether the Court of Appeal's decision in Metron will impact
future sentencing decisions for convictions under the OHSA.
CCPartners has expertise in all areas relating to health and
safety compliance, including defending corporations charged under
the Criminal Code and the OHSA.
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