Pleading guilty to criminal charges sets Ontario precedent

Jul 24, 2012

Pleading guilty to criminal charges sets Ontario precedentA corporate guilty plea to criminal negligence following a fatal workplace incident marks the first such plea in Ontario, and sends a signal to workplaces that criminal prosecution is a reality in Ontario and poses serious consequences. Metron Construction Corporation filed its guilty plea on June 15, and was sentenced on July 13 to a $200,000 fine.  The Crown prosector had asked for a $1 million penalty. There is no limit under the Criminal Code on the amount of a fine that may be imposed upon a corporation.

Laying charges under the Criminal Code was made possible by a 2004 amendment to the code. The amendment imposes a legal duty on everyone who has the authority to direct how another person works or performs a task to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task. “Everyone” includes individuals, organizations and corporations.

To succeed with criminal charges, prosecutors must prove that the individuals, organizations or corporations showed "wanton or reckless disregard for the lives or safety of other persons" (i.e., negligence) when carrying out, or failing to carry out, their legal duties, notably those imposed by the Criminal Code or occupational health and safety legislation.

In the Ontario case, the company president also pled guilty, but to charges under Ontario’s Occupational Health and Safety Act rather than the federal Criminal Code. A joint submission by Crown and defence counsel recommended a fine of $22,500 for each of four charges, for a total of $90,000. The court accepted the recommendation and imposed the $90,000 fine at the same time it sentenced the firm.

According to Sandro Perruzza, Workplace Safety & Prevention Services (WSPS)’s chief of client services, the incident and its consequences offer valuable insights for other workplaces. But first, more on what happened and its effect on Ontario’s prevention system.

On Christmas Eve 2009, four workers employed by Metron Construction fell to their deaths when their swing-stage scaffold collapsed. None were using fall arrest systems. A fifth worker sustained serious injuries. A sixth worker’s fall was halted by the lifeline of his fall arrest system.

Shortly after the incident, the Ministry of Labour announced its first comprehensive review of Ontario’s occupational health and safety system since the promulgation of the Occupational Health and Safety Act in 1978. An expert advisory panel appointed by the minister of labour produced 46 recommendations, which the minister accepted almost immediately. Among the recommendations: appointing a new chief prevention officer responsible for developing a province-wide workplace health and safety strategy. (For more on panel outcomes, see “Additional reading,” below.)

Cheryl Edwards, a partner with Heenan Blaikie LLP, a frequent speaker on legal issues at Health & Safety Ontario conferences, and one of the first people to break the sentencing story, notes that the incident garnered nationwide media attention and quickly became known as one of the highest profile workplace incidents in Ontario's and possibly Canada's history. “This Christmas Eve incident has become a lightning rod for public, trade union, and government focus on the need for increased vigilance toward safety in the construction industry and elsewhere.”

The charges

Following an investigation, explains Edwards, the Ministry of Labour laid 61 charges under the Occupational Health and Safety Act against Metron Construction, its president, a supervisor, the company that had supplied Metron with the swing-stage, and a company director of the supplier.

Toronto police also charged Metron, its president and the supervisor with four counts each of criminal negligence causing death and one count of criminal negligence causing bodily harm. Criminal charges against the supervisor are still pending.

On June 15, Metron pled guilty to one charge of criminal negligence causing death under the Criminal Code, and its president pled guilty to four contraventions of the Occupational Health and Safety Act:

  • two counts under section 26.2 of the Construction Regulations – failing to take reasonable care to ensure a worker using a fall protection system was adequately trained, and failing to maintain proper training records (including names of workers and dates of training)
  • one count under section 93 – failing to take reasonable care to ensure a suspended scaffold was maintained in a condition that did not endanger a worker or was defective or hazardous
  • one count under section 134 – failing to ensure that a suspended platform complied with all aspects of the regulations

Cheryl Edwards notes that, if the court had accepted the Crown’s recommendation of a $1 million penalty for Metron, it would have represented the highest penalty for criminal negligence causing death for a workplace incident in Canadian history. The only other corporate criminal negligence conviction in Canada resulting from a guilty plea involved Transpavé Inc., a Quebec company that manufacturers concrete products such as bricks, paving stones and ornamental blocks. The company was fined $100,000.

As for the proposed fines against Metron’s president, says Edwards, if accepted by the court they will set a new high water mark for a sentence against any individual, let alone a director and officer, under an occupational health and safety statute in Canada.  (For more on the case and its implications, see “Additional reading,” below.)

Consequences for employers

Any company that ignores its health and safety responsibilities to the point of criminal negligence faces enormous consequences, says WSPS’s Sandro Perruzza. “From a personal perspective, the emotional and psychological costs of being responsible for the deaths of four people and serious injuries to another are incalculable. From a strictly business perspective, financial penalties are only a starting point. The company still faces a $16 million lawsuit filed by one of the surviving workers.

“Now imagine the cost to your brand of media coverage so far, media coverage still to come, and a notice on your own corporate website advising that your business has been criminally convicted of harming workers. How can you bid on new contracts when RFPs routinely ask for a health, safety and environmental history?

“These are all direct consequences of ignoring health and safety responsibilities,” continues Perruzza. “Despite all the evidence, some businesses persist in seeing health and safety as a drag on the bottom line rather than a contributor to organizational excellence.”

Perruzza also points to leading firms that see health and safety as a competitive advantage. “It’s not about complying with legal requirements. They’re just a starting point. It’s about understanding and managing all the risks your business faces, and leveraging and protecting your assets. For most businesses, their people are their greatest asset.”

Next steps

“To protect both workers and the business,” says Perruzza, “I strongly encourage people to conduct a detailed and comprehensive hazard assessment. Knowing what could potentially harm your business, including your employees, enables you to implement measures that prevent injuries and maximize production.

“If you already have a comprehensive system in place,” continues Perruzza, “then have it audited to identify gaps and opportunities for improvement. It’s all about focusing your resources where they’ll generate the greatest return.

How WSPS can help

WSPS offers consulting services, including how to
  • benchmark your health and safety management system against established standards.
  • elevate your established health, safety and wellness program so that it correlates to quantified business results.
  • integrate your health and safety program into your operations by aligning it with key initiatives such as six sigma, ISO 9001, lean manufacturing and balanced scorecard performance management.