Those involved with occupational health and safety law have
followed with interest the ongoing saga of Metron Construction.
This sad story began with the collapse of a hanging swing stage at
a western Toronto apartment building, resulting in the deaths of
four workers and serious injuries to another. Various
prosecutions under the Occupational Health and Safety
Act and the Criminal Code have resulted
in the imposition of over $1.5 million in fines and surcharges on
the various corporations and individuals involved in the
Another prosecution, R v Kazenelson, respecting
that accident recently concluded with the conviction of the site
supervisor for five criminal charges: four charges of criminal
negligence causing death, and one charge of criminal negligence
causing bodily harm. This is the first successful prosecution
of an individual under the provisions of the Criminal
Code which deal with workplace accidents.
On January 11, the Ontario Court of Justice
imposed a sentence of three-and-a-half years on the
accused. Since the conviction of a corporation for criminal
negligence under the Criminal Code cannot result
in jail time, this represents the first case in which a court has
imposed a term of incarceration in respect of such an offence.
On first blush, two aspects of the decision immediately stand
out. First, the Court stated what principles will be applied
in determining sentence on such a prosecution. Moreso than
the rehabilitative potential and good character of the accused, the
Court will look to craft a sentence which will denounce the conduct
and deter others, rather than look towards the rehabilitation of
This means that the Court will likely tend towards harsher
sentences in similar cases, even where the accused may be
remorseful and have no risk to re-offend. This can be
contrasted with the findings of courts in other cases of criminal
negligence. For example, in
one case the British Columbia Supreme Court imposed a sentence
of five months' incarceration on a hang gliding instructor
found criminally negligent in the falling death of a novice glider,
citing significant mitigating factors. It does not appear the
Court in Kazenelson reviewed this case, nor did it
engage in a similar deep analysis of the personal circumstances of
the accused. In Kazenelson, the Court found
that the accused was of good character but did not let that
determination play significantly into its decision-making.
Secondly, the Court reaffirmed that the possible contributory
negligence of the workers was not a factor that militated for a
lighter sentence, and that the previous strong safety record of the
accused was not a significant mitigating factor. This is
concerning, as it means that a one-time lapse in judgment could
lead to significant punishment for employers, regardless of the
existence of any other safety programs.
On a strict reading of this decision, it appears that criminal
charges may be possible against any supervisor that is aware of a
significant workplace risk and does not immediately respond to
it. This could signal an increase in the frequency of such
The verdict and sentence in Kazenelson and the
other decisions related to that incident will be explored in
Stringer LLP's upcoming complimentary webinar:
Surveying the Aftermath: Metron and the Future of
Health and Safety Prosecutions
Health and safety lawyers Ryan Conlin and Frank Portman will
dissect the various proceedings which have flowed from the Metron
saga. Five different prosecutions, against five very
different individuals and corporations, have now concluded, and
have resulted in a significant ripple effect through health and
safety law. Among other topics, this webinar will cover:
The guidance the courts have given regarding health and safety
prosecutions under the Criminal Code;
The liability for suppliers and engineers involved in
workplaces that suffer accidents;
Where the Metron decisions fall in the trend towards
criminalizing workplace health and safety; and
The consequences for the prosecution and defence in serious
workplace safety accidents.
Join us on a complimentary basis on Thursday, February
4th at 12:00 noon. Please register
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