Wednesday, 18 September 2013

Court of Appeal bolsters need for Worker Safety


In a judgment hardly a week old, the Court of Appeal has sent a strong message to employers that worker safety will not be taken lightly.

In R. v Metron Construction[1], the Court was dealing with an appeal from a decision which imposed a fine on an employer guilty of criminal negligence. The case involved a group of construction workers who were working on the exterior of a building in Toronto. When six of the workers descended in a swing stage, the stage collapsed. Four of the workers died in the fall.

It was subsequently determined that the swing stage wasn’t properly constructed. The swing stages were constructed under supervision by the site supervisor and the project manager. The stage was only designed to accommodate two workers, not six. Worse yet, the company had rented two swing stages, each of which arrived without a manual, instructions, design drawings or any other information about the stages. There was also no report by an engineer confirming that the swing stages were built in accordance with design drawings. Such an engineer’s report is a safety requirement under regulations to the OHSA[2].

Only two of the workers were secured by a lifeline. The four who weren’t secured by lifelines died in the fall. One worker was properly secured by a lifeline and survived. The other was improperly secured by a lifeline and survived, but with serious injuries[3].

Representatives of the employer entered pleas of guilt to criminal negligence causing death and several violations of the OHSA. The Prosecution sought a $1 million fine for the employer. The sentencing judge, however, placed undue emphasis on the fact that a fine of $1 million was likely to drive the employer into bankruptcy. He imposed a fine of $200,000, which, it was believed, would send a clear message to employers that worker safety was important to all businesses.

The Court of Appeal overturned this decision. The sentencing judge had relied on past decisions made under the OHSA in deciding on an appropriate range for the fine. The Court concluded that this was an error, finding that: “A range of sentences established under the OHSA regulatory regime does not reflect the gravity of the offence of criminal negligence causing death.” Therefore, the cases relied upon by the sentencing judge in determining a range for the fine was of limited assistance.

Furthermore, the sentencing judge should not have placed such concern on the financial ability of the employer to pay: “The economic viability of a corporation is properly a factor to be considered but it is not determinative.”[4] In doing so, the sentencing judge made the company’s financial situation a determinative factor and failed to send a strong enough message to employers that worker safety is to be protected. The Court stated:

 

A sentence consisting of a fine of $200,000 fails to convey the need to deliver a message on the importance of worker safety. Indeed, some might treat such a fine as simply a cost of doing business. Workers employed by a corporation are entitled to expect higher standards of conduct than that exhibit by the respondent[5] [i.e. the employer].

 

The Court found that the sentence the sentencing judge had imposed was manifestly unfit. The Court imposed a sentence more fitting to the gravity and nature of the crime. The Court overturned the fine of $200,000 and nearly quadrupled the fine, imposing a fine of $750,000.

While this was a decision made under the Criminal Code, and not the OHSA, the Court sent an unmistakable warning to employers that there can be no shortcuts when it comes to worker safety. Workplace injuries are not simple a “cost of doing business” and any company that sacrifices the lives of its workers through poor safety conditions may risk penalties that exceed its financial capacity to pay. The Court will not spare a company from bankruptcy when the company did not take adequate precautions to spare the lives of its workers. Though nothing will bring those workers back, we hope it gives their loved ones some comfort to know that the loss of their lives and their employer’s negligence is being taken seriously.

 

For further reading, the decision can be found here.



[1]  R  v Metron Construction Corporation, 2013 ONCA 541 [Metron]. 
[2] Construction Projects, O Reg 213/91, s. 139(5) .
[3] Metron, supra note 1 at paras 10 and 11.
[4] Ibid at para 108.
[5] Ibid at para 115, parenthesis mine.

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