Court of Appeal Increases Fine Levied Against Owners

Convictions for criminal negligence under the Criminal Code have become all the more onerous for business owners after the Ontario Court of Appeal levied a $750,000 fine against a business owner late last year.

In a prior edition of EMPlawyers Update, we informed our readers of the tragic events of the R. v. Metron Construction case. On December 24, 2009 a swing stage descended from the fourteenth floor of Metron Construction’s high-rise con-dominium construction site, fatally injuring three workers and a site supervisor. Post-mortem examinations identified the cause of death as multiple injuries consistent with a fall from a great height, as well as the presence of marijuana in three of the four deceased. It was identified that the incident was caused by the defective design of the swing stage, the swing stage’s inability to support the weight of six men and their equipment, and the lack of personal harness lifelines on all but one of the workers.

In the court of first instance, the parties agreed that the site supervisor breached his duties as a senior officer. Thus, Metron pled guilty to one count of criminal negligence causing death under section 219 of the Code, and the President of Metron pled guilty to four charges under the Occupational Health and Safety Act (the Act). For this, Metron was fined $200,000 plus a Victim Fine Surcharge of $30,000.

The Crown, viewing the sentence as being too lenient, requested leave to appeal. It sought a fine of one million dollars, presenting the position that, regardless of mitigating factors such as a “guilty” plea, the accident was preventable.

The Defence contended that the guilty plea was a significant mitigating factor. Also, the accident resulted from a momentary lapse in judgement; there were safety precautions in place generally throughout the construction site, including a usual practice of only two workers being on a swing stage at one time. It was argued that this was not a systematic course of non-compliance with the Act and the Code.

The Court of Appeal discussed the distinction between regulatory offences of the Act and criminal offences of the Code. The Act protects the public from adverse effects of otherwise lawful activity, while Code offences require an element of fault and blameworthiness. Of the various Code offences, criminal negligence causing death is one of the most serious and is at the high end of the continuum of moral blameworthiness. Sentences under this charge can result in life imprisonment for an individual and an unlimited fine for an organization, whereas offenses under the Act are limited by statutory maximums. The Court then concluded that the distinction between these two types of offences establishes that a proportionate sentence under one regime would not be proportionate under the other. Therefore, the reliance of the court of first instance on statutory maximums in this case was an error.

The Court of Appeal also determined that an organization’s ability to pay should not be treated as a prerequisite to the imposition of a fine; while economic viability may be considered, the prospect of bankruptcy should not be used to evade an appropriate fine. Thus, the Court of Appeal found the sentencing judge’s decision in this regard also erroneous. Finally, the Court of Appeal stressed the gravity of the offence, characterizing the corporation’s liability for the site supervisor’s negligence as “extreme”. In place of the $350,000 fine, the Court levied a sentence of $750,000 against Metron.

This decision is relevant to all employers as it demonstrates the courts’ treatment of criminal charges arising out of an occupational health and safety violation. Specifically, this decision demonstrates that the potential liability for a corporate defendant employer is unlimited.