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After Metron: Corporate criminal liability landscape in Canada

A sixth worker (the only one properly attached to a “lifeline”) was held by his lifeline and was pulled to safety onto a nearby balcony. Four of the five workers who fell died as a result of their injuries from the fall.

The fifth worker suffered significant injuries, but survived the fall.

Based on these dreadful and widely-known facts Metron Construction Corporation (Metron) has been found guilty of a single charge of criminal negligence causing death. On July 13, 2012, after hearing and considering submissions from the Crown and Metron, the Ontario Court of Justice sentenced Metron to a $200,000 fine.

The Court also imposed a $90,000 fine on Metron’s president after he pleaded guilty, as a company director, to four charges under the Ontario Occupational Health and Safety Act (OHSA). All criminal charges against the company president were withdrawn by the Crown as a result of these guilty pleas.

From the perspective of workplace safety, the Metron case is remarkable in a number of ways. The case:

- Represents the first corporate criminal negligence conviction in Ontario following passage of Bill C-45 in 2004. The sentences imposed on Metron and its president are the highest monetary penalties imposed for a workplace accident under the Criminal Code and the OHSA. They are likely to be reference points for sentences imposed in future cases under the OHSA and the Criminal Code;

- Has had a significant impact outside of the courtroom. The Christmas Eve 2009 tragedy is widely

regarded as a significant factor in motivating the review of the occupational health and safety system in Ontario. That review resulted in a number of fundamental changes to the regulatory system and there are many changes yet to come;

- Demonstrates how Bill C-45 has managed to broaden the means by which to prove criminal negligence. The Metron case appears to show that one of the main objectives in amending the Criminal Code – making it easier to obtain criminal negligence convictions against organizations – has been met. Whether this will embolden police and prosecutors to pursue more corporate

criminal negligence charges following workplace accidents remains to be seen.

Metron was involved in one of the worst workplace accidents in Canadian history and is the second corporate criminal negligence conviction arising from a workplace accident since Bill C-45. The sentences are the highest monetary penalties ever meted out under the OHSA and Criminal Code for a workplace accident.

These facts alone would make the case notable. Yet, Metron also demonstrates how the means to prove criminal negligence against a corporation has been expanded and that the positive measures taken by a corporation can be quickly displaced by the conduct of a local manager or supervisor.

Additionally, Metron has provided impetus for policy and legislative changes which are still unfolding. Ultimately, though the entire impact of the Metron case cannot be known today, what is clear is that no case in recent memory has so directly impacted the law and policy of workplace safety.

(Read a more detailed analysis of the Metron sentencing in Heenan Blaikie's OH&S and Workers' Compensation Management Update. This article is co-authored by Jeremy Warning and Shane Todd.)

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Jeremy Warning is a partner in the Labour and Employment Group and a member of Heenan Blaikie's national OHS & Workers’ Compensation Practice Group. Jeremy is listed in The Best Lawyers in Canada 2012 directory as a leading occupational health and safety lawyer. Jeremy can be contacted by e-mail at jwarning@heenan.ca or by telephone at 416 643.6946.

Cheryl A. Edwards is the lead of Heenan Blaikie's national OHS & Workers’ Compensation Practice Group. Cheryl has close to 25 years of experience in representing employers, constructors, supervisors and officers and directors at OHS regulatory trials, complaints, inquests and appeals. She can be contacted by e-mail at cedwards@heenan.ca or by telephone at 416 360.2897.

Shane D. Todd is an Associate in the Heenan Blaikie Labour and Employment Law Group and a member of the national OHS & Workers’ Compensation Practice Group. Shane can be contacted by e-mail at stodd@heenan.ca or by telephone at 416 643.6958.

Cheryl A. Edwards

Cheryl Edwards is a former occupational health and safety prosecutor with almost 30 years of experience. She can be reached at (647) 777-8283 or cedwards@mathewsdinsdale.com, or visit www.mathewsdinsdale.com for more information.
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