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Ontario court sends message of deterrence by sentencing project manager to 3.5 years imprisonment from preventable workplace fatalities

As most of you recall, on December 24, 2009, five construction workers fell from a stage swing on a residential building that was been used so that the workers could fix the concrete on the building. There were six workers on the platform but only two secure lifelines and only one of the workers had secured himself. When the platform split, four of the workers were killed and one miraculously survived the 100 foot drop albeit with serious injuries.

In the subsequent trial, the court concluded that the accident was preventable. First, the swing that had been used had been improperly designed. Second, there were not enough life lines for all of the workers to have properly secured themselves as required by industry practice and the Occupational Health and Safety Act.

In the subsequent trial, the Project Manager had been found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. These were charges based on the Bill C-45 amendments to the Criminal Code which came into force in 2004 (arising from the Westray mine disaster) and imposed new legal duties for workplace health and safety and new serious penalties for violations that result in injuries or death. The Bill provided new rules for attributing criminal liability to organizations, including corporations, their representatives and those who direct the work of others.

The Project Manager had been convicted under section 217.1 of the Criminal Code which provides:

217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is 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.”

The Court concluded the Project Manager was under pressure to complete the project and that he knew that 5 or 6 workers would be on the swing because he was at the site directing them at the time. However, rather than ensure there were sufficient lifelines for all of the workers on the swing, as had been done in the past, the Project Manager “took a risk” by not obligating the workers to be secure. Consequently, he was found guilty of breaching section 217.1 because he did not intervene to ensure the workers were all properly secured prior to the accident taking place. His conduct was a marked departure from what would have been expected in the circumstances and resulted in 4 deaths and 1 serious injury.

In the sentencing hearing, the Crown sought a sentence of 4 to 5 years while the Defence sought a sentence of 1 to 2 years.

Justice MacDonnell reviewed the submissions of the parties and made the following findings:

  • Sentences must be proportionate the gravity of the offence and sentences but deter the offender and others from committing similar conduct.
  • The Project Manager clearly knew the risk of not having lifelines for the workers. However, he chose to ignore the risk and “take a chance” that nothing would happen. As a direct result of his decision, 4 men died and one suffered serious injuries.

Considering the principles of denunciation and deterrence, Justice MacDonnell held that a term of 3.5 years on each count was justified but to be served concurrently with one another. This judgement was designed to send a message to all that there were serious consequences for those that failed to meet their obligations to ensure the safety of workers.

The Project Manager is appealing his January 11, 2016, sentence and is currently on bail.

This case is significant for anyone involved in health and safety because it is the first conviction and sentence rendered on Bill C-45. If health and safety procedures are not followed, serious consequences can follow including incarceration arising from liability under the Criminal Code.

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Simon Heath

Employment Lawyer and principal at Heath Law, Employment Lawyers
Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals. Read more
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