In R. v Metron, 2013 ONCA 541, Metron Construction Corporation (“Metron”) was found to have committed criminal negligence in failing to take reasonable steps to prevent bodily harm to its workers. Metron is the first case decided under the criminal negligence provisions of the Criminal Code where the parties did not agree on the sentence. At the trial level, Metron pleaded guilty and was sentenced to a fine of $200,000.
The Crown appealed the sentence. On September 4, 2013, the Ontario Court of Appeal (“ONCA”) increased the fine to $750,000. This is the highest fine ever imposed upon a corporation for a workplace accident under the Code. In its decision, the ONCA provided detailed commentary regarding the sentencing provisions for organizations under this provision of the Code.
Metron hired an independent contractor to manage the repair of balconies of an apartment building. The independent contractor hired a site supervisor. Two swing stage platforms were assembled, supervised by both the project manager and the site supervisor. The swing stages had only two life lines.
On the evening of December 24, 2009, the site supervisor, along with five other workers, boarded one of the two swing stages. Tragically, the swing stage was not secure and fell to the ground. One worker was properly attached to a life line and survived, another was improperly secured, suffering a permanent injury. The other four fell to their deaths.
Ultimately, Metron was fined $750,000. In setting this fine, the ONCA put its stamp of approval on the application of criminal liability to the actions of a third party that manages an important aspect of a corporation’s business.
This case was not appealed at the Supreme Court of Canada.
Employers cannot distance themselves from culpability on the basis that the acts were not those of senior management but rather of employees lower down the corporate ladder. The role of the site supervisor was captured within the Company’s scope of liability, despite him being an employee of Metron’s subcontractor. The site supervisor was responsible for taking reasonable steps to prevent bodily harm and death, including to ensure that there were a sufficient number of life lines for the number of individuals on the swing stage, and that all individuals were properly secured to the life lines. This was the normal and usual practice on the project site.
Importantly, the Metron decision clearly demonstrates that penalties for workplace injuries and deaths are increasing. Moreover, courts will not shy away from setting fines that would push a corporation into insolvency.
To ensure that their activities do not cause serious criminal liability, employers can put in place a rigorous compliance program. Employers should take the following steps to protect workers and limit criminal liability:
- Review current occupational health and safety policies for quality and completeness
- Provide health and safety training to all employees, regardless of their level
- Proactively engage unions and employee health and safety representatives to develop a culture of joint responsibility and liability, as well as important sets of extra eyes in the workplace
- Ensure all employees review and sign health and safety policies
- Review contracts with third party agents and consider whether the contract delegates management of an important aspect of the business to the third party, which will merge the third party with the organization in criminal law
- Provide training to third party agents where possible
- Ensure future contracts with third party agents include terms and conditions that they will comply with the company’s health and safety policies as well as the relevant legislation
- Demand audit rights for third parties, including surprise audits
Many thanks to Chanel Sterie for her assistance in drafting this blog.