A. INTRODUCTION
On Christmas Eve in 2009, four
workers of Metron Construction Corporation (“Metron”) died when their swing stage, which carried more weight than it was
designed to hold, fell from the fourteenth floor of a construction site.
Criminal charges pursuant to the Criminal Code of Canada (the “Code”)
were brought against Metron and its sole director and
president, Joel Swartz. The criminal charges were later withdrawn against Mr.
Swartz, who was required to pay a $90,000 fine under the Ontario Occupational
Health and Safety Act (the “OHSA”). Metron entered a guilty plea to a count of criminal negligence causing death. The
sentencing hearing took place before the Ontario Court of Justice on June 15th and 28th, 2012, and the judgment was released on July 13, 2012. Metron was sentenced to pay a $200,000 fine. The Crown
appealed this sentence to the Court of Appeal asserting that the fine was
“manifestly unfit”. The Court of Appeal judgment was released on September 4,
2013, resulting in an increased fine of $750,000. This Charity Law Bulletin discusses both the Ontario Court of Justice and Court of Appeal decisions. While the facts and the
decision are specific to this case, the laws regarding worker safety apply to charities
and not-for-profits, which are under legal obligations to protect the safety of
their workers.
B. THE FACTS AND GUILTY PLEA
In September 2009, Metron hired Fayzullo Fazilov as the site
supervisor for a project to restore concrete balconies in Toronto. Metron leased two swing stages for the project, but neither
of them had serial numbers or labels about maximum capacity, nor did they
arrive with any manual instructions, product information and design drawings
prepared by an engineer, as are required by s. 139(5) of the OHSA Regulations for construction projects. The common
industry practice is to have two workers on one swing
stage, but on Christmas Eve, five workers and Mr. Fazilov boarded one swing stage with two harnesses. The swing stage was unable to
support the weight and it fell. Four of the men, including Mr. Fazilov, were not supported by harnesses and they died. In
addition, three of the four deceased, including the supervisor Mr, Fazilov, were under the influence of marijuana at the time
of the accident. It was revealed that the cause of the accident was the swing
stage’s “defective design and inability to withstand the combined weight of the
six men.” However, the workers would have survived the accident had they been given the
required harnesses. Metron admitted that Mr. Fazilov should not have allowed six workers on one swing
stage without harnesses and while under the influence of marijuana. Metron pleaded guilty to one count of criminal negligence
causing death under Code sections 22.1(b), 217.1, and 219.
Code section 22.1(b), enacted in 2004 after the Westray mining disaster in Nova Scotia, provides that for
the purposes of proving an offence which requires “negligence”, an organization
is party to an offence if a senior officer departs from the expected standard
of care. Metron conceded that Mr. Fazilov was “senior officer”, as defined in s. 2 of the Code. Section 217.1,
also enacted in 2004, provides that someone who directs the work of another
person is under a legal duty to take “reasonable steps to prevent bodily harm
to that person, or another person.” The offence of criminal negligence is set
out at s. 219(1) of the Code, as follows: “Everyone is criminally
negligent who (a) in doing anything, or (b) in omitting to do anything that is
his duty to do, shows wanton or reckless disregard for the lives or safety of
other persons.” Therefore, in light of these Code provisions, Metron was found criminally negligent for the deaths of the
workers.
C. THE SENTENCE
In criminal sentencing, courts must apply the general
principles of denunciation, deterrence, rehabilitation and proportionality. In
addition, at the sentencing hearing the Ontario Court of Justice also applied
recently enacted Code section 718.21 which listed the factors that a
court should use when imposing sentences on an organization. Section 718.21
provides:
A court that imposes a sentence on an organization shall also
take into consideration the following factors:
(a) any advantage
realized by the organization as a result of the offence;
(b) the degree
of planning involved in carrying out the offence and the duration and
complexity of the offence;
(c) whether the
organization has attempted to conceal its assets, or convert them, in order to
show that it is not able to pay a fine or make restitution;
(d) the impact
that the sentence would have on the economic viability of the organization and
the continued employment of its employees;
(e) the cost to
public authorities of the investigation and prosecution of the offence;
(f) any regulatory penalty imposed on the organization or one of its representatives in
respect of the conduct that formed the basis of the offence;
(g) whether the organization
was — or any of its representatives who were involved in the commission of the
offence were — convicted of a similar offence or sanctioned by a regulatory
body for similar conduct;
(h) any penalty
imposed by the organization on a representative for their role in the
commission of the offence;
(i) any restitution that the organization is ordered to make or any amount that the
organization has paid to a victim of the offence; and
(j) any measures
that the organization has taken to reduce the likelihood of it committing a
subsequent offence.
At the sentencing hearing, the court noted that there was
only one other case where a corporation was sentenced for criminal negligence
causing death. That was a decision from the Province of Quebec where a corporation
was fined $100,000. Therefore, the court assessed Metron’s case by
primarily relying upon OHSA jurisprudence.
While recognizing that there was no maximum Code fine, examining the
factors from section 718.21, the court arrived at Metron’s $200,000 sentence by taking into account the range of
fines from several OHSA cases.
On appeal, the Crown submitted that the fine was
“manifestly unfit” arguing that the sentencing judge should not have used the
ranges from OHSA cases since criminal
offences, especially criminal negligence, involve a higher degree of
culpability, and thus deserve a higher fine.
The Court of Appeal agreed that there was limited
jurisprudence concerning a workplace death conviction under the new Code amendments. It then considered three issues in the appeal:
1) Whether the sentencing judge erred
by relying upon the range of fines found in the OHSA jurisprudence to determine Metron’s sentence for
criminal negligence causing death.
2) Whether the sentencing judge
incorrectly applied section 734(2) and 718.21(d) of the Code, in addition to limiting the fine to an amount
that Metron can afford.
3) Whether the $200,000 fine was
“manifestly unfit” for Metron’s case.
D. CONSIDERATION OF THE ISSUES
1. Using the sentencing range in OHSA jurisprudence
The Court of Appeal distinguished between regulatory
offences and criminal offences, concluding that the regulatory and criminal
offence concepts of fault and blameworthiness were quite different. The court
noted that the OHSA was regulatory
legislation, which imposed maximum fines of $500,000 on organizations. On the
other hand, Metron was being sentenced for criminal
negligence causing death, which was a serious criminal offence without a
maximum fine. Furthermore, the court affirmed that the Code’s corporate
criminal liability for criminal negligence should not replace provincial
legislation, like the OHSA, but instead should
provide “additional deterrence for morally blameworthy conduct.” Section 718.1 of the Code expressed the concept that a sentence should reflect the gravity of an offence,
and the OHSA sentences did not reflect the
gravity of criminal negligence causing death. The court concluded that although
the sentencing judge was allowed to consider the OHSA jurisprudence, the $200,000 fine did not demonstrate the “moral blameworthiness
and gravity” of criminal negligence causing death.
2. Limiting the fine to an amount Metron could afford
The Court of Appeal analyzed the Code section
734(1), which authorized the court to fine a convicted person, and section
734(2), which permitted courts to fine a person only if that person was able to
pay the fine. However, both sections did not apply to organizations,
such as Metron. Therefore, the court ruled that under
section 734 it was not necessary to consider an organization’s ability to pay a
fine. The court then examined the Code section 718.21 to determine
whether this section considered an organization’s ability to pay. It determined
that a court must consider, as only one factor, the sentence’s impact on the
“economic viability of the organization” and on the organization’s employees.
However, the Court of Appeal ruled that the sentencing judge erred when he
considered himself as precluded from imposing a fine that could result in the
corporation’s bankruptcy.
3. $200,000 fine being manifestly unfit
The Court of Appeal agreed with the Crown that the
$200,000 fine was unfit, since the sentence should be proportionate to the
seriousness of the offence and the organization’s level of responsibility. The
court required the sentence to demonstrate the “importance of worker safety,” not the “cost of doing business.” The court also considered that Metron’s offence was more serious than OHSA offences, and a corporation should be responsible for its representatives’ and
supervisors’ conduct. The court concluded that $750,000 fine was a more
suitable sentence for Metron, given the seriousness
of the offence and the factors in section 718 of the Code. Therefore, Metron’s sentenced increased from $200,000 to $750,000 by
the Court of Appeal.
E. CONCLUSION
R v Metron Construction Corp. was the first Ontario case that addressed a corporation’s sentence for criminal
negligence causing death. This case demonstrates the court’s willingness to
impose high fines on organizations in situations of serious misconduct leading
to worker injury and death. While Metron is a for
profit business, the laws apply equally to charities or not-for-profit
organizations. Charities and not-for-profit organizations should have proper
safety measures for their workers or volunteers, must abide by their province’s
occupational health and safety legislation, and should monitor the conduct of
any representatives or supervisors who direct the work of others. These
recommendations are particularly important for those organizations involved in
programs or activities which entail a significant risk of injury. As well,
charities and not-for-profits that carry out activities and programs in foreign
countries that employ local employees may also be subject to criminal and
occupational health and safety legislation applicable in those jurisdictions.
