On Friday, June 15, 2012, Metron Construction entered a guilty plea to one charge of criminal negligence causing death under the Criminal Code as amended by Bill C-45. At the same time, its President, Mr. Joel Swartz, P.Eng. pleaded guilty to four contraventions of the Ontario regulatory statute, Occupational Health and Safety Act (OHSA). The criminal and regulatory charges relate to the Christmas eve tragic death of 4 workers when a scaffold broke and workers fell since they were not using a fall protection.
The President has not yet been sentenced; however, a joint submission by the Prosecution and the Defence was made for fine of $22,500 per charge. The proposed fine against Metron's President will, if imposed, set a new high water mark for a sentence against any individual, let alone a director and officer under an OHS statute in Canada.
Metron Construction has not yet been sentenced on its guilty plea to the criminal negligence charge. Under the Criminal Code there is no maximum fine that may be imposed upon a convicted organization. The Criminal Crown has sought a penalty of $1 million; the defence has not yet completed their submissions on sentencing.
This landmark case is the second corporate guilty plea in Ontario under the Bill C-45 amendments to the Criminal Code that took effect on March 31, 2004. If imposed, a corporate sentence of one million dollars will represent the highest penalty for criminal negligence causing death for a workplace accident in Canadian history. The only other prior corporate criminal negligence conviction in such a matter, on a guilty plea in 2008, was Transpave, resulting in a fine of $100,000.00 in Quebec.
Criminal charges against the supervisors are still pending and a preliminary hearing commenced on May 7, 2012 in Toronto and is ongoing. In this hearing a judge will assess if there is sufficient evidence for the matter to proceed to a criminal trial.
Background to the Guilty Plea
Metron Construction Corporation and three individuals related to the company were charged with criminal negligence causing bodily harm and four counts of criminal negligence causing death. The charges arise from the deaths of four migrant workers and the critical injury of another, following the collapse of a swing stage scaffold on the 13th floor of a Toronto apartment building on Christmas Eve of 2009. The incident received national media coverage. The Government of Ontario appointed the University of Toronto's Tony Dean to conduct an inquiry into workplace safety prevention initiatives after this incident.
A crew of six men was working on repairing the balcony at 2757 Kipling Avenue when the incident occurred. A sixth worker escaped unharmed. The incident occurred when a seventh worker attempted to step onto the swing stage, causing it to break into two pieces, and the four workers fell to their death.
In August, 2010, 61 OHSA charges were laid against various parties as a result of the same accident. Thirty charges were laid against Metron Construction Corporation, with an additional 16 against a Metron senior manager and 8 against a supervisor.
The Ministry of Labour has never previously laid any OHSA charges against Metron in its 23 years of operation. However, in the two months leading up to the deadly incident, eight orders, including some dealing with swing stages, have been issued to Metron Construction at the job site in question.
These charges mark another instance that a corporation or an individual has been charged with contravention of the Bill C-45 amendments to the Criminal Code. To date, none of these cases have proceeded to trial. Bill C-45 was the legislative reaction of the federal government to the Westray Mine disaster. In May 1992, 26 miners died when an explosion and fire ripped through that coal mine in Pictou County in Nova Scotia. Criminal charges in that case were thrown out at trial due to prosecution misconduct.
Action Items
Gowlings recommends that all Presidents, Directors and Officers, and Corporations immediately take the following steps to mitigate risk of similar incidents, prosecutions and legal liability:
- Have an external, experience law firm conduct an OHSLAW Gap AnalysisTM to determine the level of compliance with legal requires under the OHSA, that is protected by solicitor and client privilege;
- Fill the Gaps in OHS law compliance by developing/improving OHS Policies, Safe Work Procedures, and Accountability through an OHS management System;
- Conduct and document training for all operations Managers, Supervisors and Workers to ensure that you meet or exceed all OHS training requirements in law;
- Brief the Board of Directors of these actions and commit to an annual review of OHS Policies, Procedures and Program, as required by the OHSA and related Regulations and best practices.
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