Canada: Employer Ordered By Ontario Superior Court To Pay $2.6 Million For OHS-Related Criminal Negligence

In August 2017 the Ontario Superior Court of Justice ordered Detour Gold Corp. (the "Corporation") to pay a fine of $1.4 million after it pleaded guilty to a charge of criminal negligence causing the death of an employee1. A surcharge of $420,000 was added to the amount of the fine, and the Corporation was ordered to pay restitution in the amount of $805,333 to the family of the deceased.

This exceptionally steep penalty is in line with a trend begun by the Ontario Court of Appeal in Metron Construction Corp2 to the effect that the sentence must reflect the seriousness of the criminal negligence and the degree of moral blameworthiness attributable to the employer.

The facts leading up to the sentence

An employee of the Corporation, which operates a gold mine, died following exposure to sodium cyanide while working to fix a leak in an expansion joint near an inline leach reactor. Despite the fact that the employee had received no training on the dangers of cyanide and was wearing no protective clothing, he was allowed to work at the site of the leak. Moreover, the mine's first-aid personnel also lacked such training, and there was no protocol for them to follow in the event of cyanide exposure: they were thus unable to provide the employee with appropriate emergency treatment.

In pleading guilty to the charge of criminal negligence causing death3 the Corporation acknowledged the following lapses:

  • failure to identify the potential risks of exposure to sodium cyanide and adopt appropriate prevention measures;
  • failure to make its employees aware of and train them regarding the risks associated with cyanide exposure and the need to take appropriate protection measures;
  • failure to put in place emergency procedures for dealing with an employee exposed to cyanide.

To make matters worse, less than a month before the incident an occupational health and safety manager at the mine had identified the risks associated with the use of cyanide in an internal document.

Determination of the amount of the fine

In his quantification of the fine, judge Lalande sought to send a dissuasive message. Citing the decision in Stave Lake Quarries4, he stressed the need to impose a sufficiently severe penalty that could not be considered a "normal cost of doing business" by employers. Despite the Corporation's positive image in the community, the emphasis was placed on the seriousness of the lapses it was guilty of.

Several factors weighed in the Corporation's favour5, including no previous violations of the Criminal Code or the Occupational Health and Safety Act, and the ex post facto implementation of a training program on cyanide risks and purchase of emergency equipment. The Corporation also submitted its financial statements to the Court, as an attenuating factor, which showed limited profits and significant debt, as it had only recently begun operations. However, the prospect of high profits in the near future led the judge to decide on a fine of $1.4 million (the Crown had asked for $3 million). On top of the fine he added a surcharge of $420,000, and ordered $805,333 in restitution to be paid to the family of the deceased, as allowed by the Criminal Code.

This decision appears to open the door to more severe sentencing of employers found guilty of criminal negligence. Their obligation under section 217.1 of the Criminal Code is now coupled with a precedent-setting example of increasingly dissuasive sentencing on the part of the judiciary.

Written in collaboration with articling student Caroline Cassagnabère.

Footnotes

R. v. Detour Gold Corp., [2017] O.J. No. 5290
R. v. Metron Construction Corporation, 2013 ONCA 541
3 Sections 220(b) and 22.1 of the Criminal Code
R. v. Stave Lake Quarries Inc., [2016] B.C.J. No. 2583, par. 4
5 Section 718.21 of the Criminal Code

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