In a tragic and well-publicized occupational safety accident that occurred in Toronto on Christmas Eve 2009, four workers of Metron Construction Corporation (“Metron”) were killed and a fifth was seriously injured when the swing-stage they were standing on collapsed 13 stories above the ground.  Investigation into the incident revealed that none of the workers who fell had been secured to a lifeline.

Charges under Ontario’s Occupational Health and Safety Act (“OHSA”) soon followed.  In addition, Metron, its owner and two managers were charged with criminal negligence causing death under the Bill C-45 amendments to the Criminal Code of Canada, which were enacted in 2004.

In June of this year, Metron pleaded guilty to criminal negligence causing death; and on July 13, 2012 the court levied a fine of $200,000 (plus a $30,000 victim surcharge).  While falling significantly short of the $1 million penalty requested by the Crown, that amount is double the only other fine ever previously imposed upon an employer for criminal negligence in the occupational health and safety context—i.e. a $100,000 fine against a manufacturer of concrete blocks located in Quebec, following a fatal workplace accident in 2005.

Although the criminal charges against Metron’s owner were dropped, he pleaded guilty to charges under the OHSA, and on July 13, 2012 was assessed a fine of $90,000 (plus a $22,500 victim surcharge).   That amount represents the highest monetary penalty ever ordered against an individual for violating the OHSA.

Significantly, the total fines related to this incident—which now stand at $342,500– may increase even further, as the criminal charges brought against the managers in this case have not yet come to trial.

As substantial a figure as $342,500 is, the penalties handed down by the court in this matter have drawn criticism from organized labour, which has repeatedly urged that criminal negligence charges be more frequently applied in the occupational health and safety context, and that courts exercise their discretion (which exists under both the Criminal Code and the OHSA) to sentence violators to terms of imprisonment.

In that regard, the Metron case is one of less than a dozen instances in which charges have been brought under the Bill C-45 amendments since they came into force in 2004; and no Bill C-45 case has yet resulted in any jail time being served.  Those facts clearly indicate that (a) criminal charges (and certainly incarceration) will remain reserved for only the most serious of cases which involve workplace fatalities and/or attract media attention, and (b) occupational health and safety enforcement will continue to be dealt with primarily under the OHSA.

Ultimately, however, regardless of the applicable enforcement mechanism, the fundamentals of occupational health and safety compliance remain the same—employers, supervisors and employees are all obliged to take every precaution reasonable in the circumstances to protect anyone who may be affected by the work that is being undertaken.  To do that, employers must approach occupational health and safety from a “team” perspective, and strive to ensure due diligence and accountability at every level of their organizations.

Jason Beeho