Ontario Court of Appeal increases fine to $750,000 for employer convicted in Christmas Eve fatalities

Trial court incorrectly used OHSA rather than Criminal Code guidelines for safety violation: Court
By Nadine Zacks, Hicks Morley
|employmentlawtoday.com|Last Updated: 09/11/2013

The Ontario Court of Appeal has overturned a $200,000 fine imposed by the Ontario Court of Justice in respect of four worker fatalities and imposed a fine almost four times greater.

In 2012, Metron Construction Corporation pleaded guilty to criminal negligence causing death under the Criminal Code in respect of the fatalities of four construction workers on Christmas Eve 2009 at a Toronto construction site. Six workers were repairing concrete balconies on the 14th story of a high rise building. Four were killed when their swing stage (suspended scaffolding) in which they were descending collapsed and fell to the ground. A fifth worker, who had been improperly attached to a safety line, suffered serious, permanent injuries. The sixth worker, who had been properly attached to a safety line, suffered no injuries.

A subsequent investigation determined the swing stage was improperly constructed and that it would not have been safe for two workers to descend on it, let alone six. Moreover, it only had two lifelines available on it. The rented swing stage had also arrived with no manual, instructions or other production information, as required by the Ontario Occupational Health and Safety Act (OHSA). Toxicology reports also indicated that three of the four deceased, including the site supervisor, had recently ingested marijuana.

At the sentencing hearing, the Crown sought a fine of $1 million. However, the Ontario Court of Justice imposed a fine of $200,000.

The Court of Appeal overturned the sentencing decision, finding the sentencing judge erred by using the sentencing range developed under the OHSA to determine the sentence, without regard to the higher level of culpability inherent in criminal offences and the particular gravity of the offence of criminal negligence causing death. That offence involves morally blameworthy conduct that amounts to a wanton and reckless disregard for the lives or safety of others.

The appeal court further held that the sentencing judge erred by determining the amount of the fine based on the company’s ability to pay. The court noted that “an organization’s ability to pay should not be treated as a prerequisite to the imposition of a fine” and, if appropriate, “the prospect of bankruptcy should not be precluded.” The economic viability of a corporation is not determinative of the appropriate fine.

Lastly, the court found a $200,000 fine was “manifestly unfit” and failed to convey the message of the importance of worker safety. As a result, the Court of Appeal imposed a fine of $750,000.

It is important to remember this was a conviction under the Criminal Code, not the OHSA. While the vast majority of workplace accidents continue to be prosecuted only under the OHSA, this decision confirms that regardless of a company’s financial situation, courts will not shy away from imposing substantial fines for health and safety breaches..

For more information see:

R. v. Metron Construction Corporation, 2013 CarswellOnt 12217 (Ont. C.A.).

Nadine S. Zacks is an associate lawyer at Hicks Morley’s Toronto office and currently practices in all areas of labour and employment law. She can be contacted at 416.864.7484 or nadine-zacks@hicksmorley.com.

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