Commentary and update on Metron and Swartz OHS and Criminal Code cases
Metron Construction contracted to restore the concrete balconies on two high rise buildings in Toronto.
On December 24, 2009, six workers (five workers and the site supervisor) were working on the 14th floor and climbed on the swing stage to travel back to the ground to get ready to leave the project site for the day.
The platform collapsed and five of the workers fell 14 floors to the ground. Four died (including the site supervisor), and one was seriously injured. The sixth worker did not fall because he was properly attached to a safety line.
Interestingly, the swing stage that collapsed did not have any markings, serial numbers, identifiers, instructions, manuals, or design drawings by an engineer. Testing the swing stage revealed that it was not properly constructed and would not have been safe for even two workers. There were only two lifelines available as regular practice dicated two workers on the swing stage at once. During the accident, there were six workers on the stage.
Moreover, a toxicological analysis disclosed that three of the four deceased workers (including the site supervisor) had marijuana in their systems consistent with having recently ingested the drug.
Metron Construction entered a guilty plea to a count of Criminal Negligence Causing Death under the Criminal Code. The company was found guilty through the acts and omissions of its senior officer, the site supervisor:
- Directing or permitting six workers to work on the swing stage with the construction materials when the site supervisor knew it was unsafe
- Directing or permitting six workers to board the swing stage knowing there were only two lifelines available
- Permitting persons under the influence of drugs to work on the project
The question was about the punishment – the Crown urged for a $1,000,000 fine, and Metron Construction insisted that $100,000 was appropriate. Jail time was not seriously contemplated.
The court first examined the relevant provisions of the Criminal Code, and noted that the 2004 amendments led to the addition of section 217.1 of the Code, which clearly stated that anyone who undertook or had the authority, to direct how another person did work or performed a task was under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task. This provision included supervisors.
Moreover, sections 718.21 of the Code added some factors a court had to consider when imposing a sentence on an organization; therefore, the court addressed these factors:
- Any advantage realized by the organization as a result of the offence – there was no advantage, other than the fact that the company would be given a bonus if the work was completed by December 29. There was no evidence this was potential bonus was related to the accident
- The degree of planning involved in carrying out the offence and the duration and complexity of the offence – this accident was the only time six workers were on the swing stage, and it represented a lapse in judgment rather than the planning of an offence. However, the swing stage was used for two months, even though there were no markings, serial numbers, identifiers, instructions, manuals, or design drawings by an engineer, which was an aggravating factor
- Whether the organization has attempted to conceal its assets or convert them in order to show that it was not able to pay a fine or make restitution – there was no attempt to hide assets or convert assets to avoid payment of restitution
- The impact that the sentence would have on the economic viability of the organization and the continued employment of its employees – although the company’s financial state is precarious, the intention was to continue and re-establish a successful business providing valuable services to the community
- The cost to public authorities of the investigation and prosecution of the offence – by pleading guilty, the company reduced the cost to the public
- Any regulatory penalty imposed on the organization or one of its representatives in respect of the conduct that formed the basis of the offence – the president and sole director, Joel Swartz, entered guilty pleas under the Occupational Health and Safety Act and had to pay $90,000 plus the statutorily required 25 percent surcharge of $22,500
- 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 – neither Metron nor Joel Swartz have been previously convicted of a similar offence or sanctioned for similar conduct
- Any penalty imposed by the organization on a representative for their role in the commission of the offence – there was no penalty imposed by the company on any representative
The court also turned to the main case dealing with the Criminal Code following an accident (R c Transpave), where the fine imposed was $100,000, along with cases involving Occupational Health and Safety Act fines which ranged from $115,000 to $425,000. The court noted that the fines in the upper range were given to much larger and more profitable companies.
Ultimately, the court settled on $200,000 plus $30,000 (a 15 percent victim fine surcharge) as a financial penalty to Metron Construction.
Meanwhile, the owner of Metron Construction, Joel Swartz, entered guilty pleas to four charges:
- Failing to take all reasonable care to ensure as director of Metron that the corporation complied with section 26.2(1) of Ontario Regulation 213/91 under the Occupational Health and Safety Act to ensure that a worker who used fall protection was adequately trained and given instruction by a competent person, and failed to ensure that the workers who could not read English received adequate written instruction in their native languages
- Failing to take all reasonable care to ensure as director of Metron that the corporation complied with section 26.2 of Ontario Regulation 213/91 under the Occupational Health and Safety Act to prepare written training and instruction records for each worker when providing training and instruction on the use of a fall protection system
- Failing to take all reasonable care to ensure as director of Metron that the corporation complied with section 93 of Ontario Regulation 213/91 under the Occupational Health and Safety Act to ensure no defective or hazardous equipment was used
- Failing to take all reasonable care to ensure as director of Metron that the corporation complied with section 134 of Ontario Regulation 213/91 under the Occupational Health and Safety Act to ensure no scaffold platform or other work platform was loaded in excess of the load it is designed to bear
The court considered the important factors, namely that Joel Swartz was a 53 year old man who was married and supported four children. He had a degree in mechanical engineering and no prior record of health and safety or criminal violations. He had 20 years of experience in the construction industry. His net income dropped dramatically between 2010 and 2011.
Also, the court considered the purpose of health and safety legislation – to protect workers from serious injury or death at work, and deter employers with a fine that is substantial enough to warn others the offence will not be tolerated.
In the circumstances, the court was dealing with serious health and safety violations and an accused with 20 years of experience and a clean record. The court accepted the joint proposal of the two counsels, and imposed fines of $22,500 for each count totalling $90,000, plus a $22,500 victim fine surcharge.
The court also commented that these fines were well above Swartz’s total income for the last year, and gave him an extension to pay them over time.
What can employers take from this case?
We see from this case that companies can be criminally liable for actions of supervisors (not just top executives). Even though the company was not aware of the health and safety breaches of the site supervisor in this case, the company was liable. This sends a message to employers to take extra care to ensure that supervisors are aware of their safety obligations. This may involve employers implementing hazard identification training and hazard remediation process training to all supervisors.
Some may believe that the fines under the Criminal Code were fair, given that Joel Swartz also paid about $112,500 in Occupational Health and Safety Act fines, the financial status of the company, and the prior good character of the corporation.
However, others may believe that this fine was just not enough in light of the fact that four workers died and one was seriously injured. Some may be of the view that this was an example of a case where jail time should have been imposed. One may wonder how the case could have been resolved with such a low fine given the state of that swing stage and the fact that it was used at all, much less 14 stories above ground. And what about the fact that the workers had just taken drugs before going on the swing stage? But the matter has been decided…
What do you think?
The Toronto Star is reporting that Ontario’s Ministry of the Attorney General has appealed the judge’s decision that imposed the $200,000 fine against Metron Construction. The prosecutors are seeking a much higher fine against the company, calling the $200,000.00 fine “manifestly unfit”.
First Reference Human Resources and Compliance Editor