By Cheryl A. Edwards
Charges were laid against Metron Construction Corporation under both the Ontario Occupational Health and Safety Act and the Criminal Code. Metron plead guilty to a single charge of criminal negligence causing death and, on July 13, 2012, was sentenced to a $200,000 fine plus a 15 per cent surcharge.
The fine represents the largest monetary penalty ever imposed on an organization in Canada for criminal negligence arising from a workplace accident. The sentencing decision in Metron is under appeal by the Crown, which alleged the fine imposed in the case is “manifestly unfit” in the circumstances. The Crown had sought a $1 million penalty.
The Metron conviction is remarkable for another reason: It suggests that organizations, with otherwise positive and proactive safety records, may be at risk of Criminal Code prosecutions following workplace accidents based solely on the conduct of a single individual or “representative” of the organization.
Basis for criminal negligence
The agreed facts presented in court to support Metron’s conviction for criminal negligence causing death reveal important details that were not widely publicized.
Significantly, the agreed facts reveal the conduct that resulted in criminal liability to Metron was entirely that of the site supervisor, one of the men killed in the accident. This particular circumstance is good reason to reflect on whether the application of the Criminal Code’s corporate criminal negligence provisions in this case led to an appropriate result, or one that would have been intended by the drafters of the legislation.
The Metron case is notable because the Crown’s burden of proof under the revised test for corporate criminal negligence — under Bill C-45 — was collapsed into the conduct of one person: the site supervisor. It was agreed by the organization in pleading guilty — and the court implicitly accepted this by granting the conviction — that the site supervisor was both a “representative” and a “senior officer” of Metron. He was a “senior officer” because he was responsible for managing an important aspect of the organization’s activities: the construction project where the accident occurred. He also had a duty to take reasonable steps to prevent injury to the workers under his supervision. The agreed facts in the case detail how the site supervisor failed to abide by his duty by:[em]
- directing or permitting six workers to work on the swing stage when he knew, or should have known, that it was unsafe to do so;
- directing or permitting six workers to board the swing stage knowing that only two lifelines were available;
- permitting workers under the influence of drugs to work on the project.
These factors cumulatively established that Metron, through the site supervisor, failed to take reasonable steps to prevent bodily harm and death and, in so doing, demonstrated “wanton and reckless disregard” for the lives or safety of others — a matter crucial to establish a Criminal Code conviction. This was so even though there was no suggestion of wrongdoing, or knowledge of wrongdoing, by Metron’s higher level management.
The site supervisor’s conduct in this case entirely displaced numerous positive steps taken by Metron prior to the accident. These steps included: making arrangements for safety training for the site supervisor and others on the site; requiring that before any work commenced, the owner of the building arrange for an engineering inspection and recertification of the roof anchors to ensure compliance with safety requirements; and providing full co-operation to the Ministry of Labour inspector who periodically inspected the project. It was also agreed that Metron’s president attended the project at least once per week and that he had not observed any violations on the site.
Metron’s conviction suggests that even an organization that takes meaningful, positive steps, or even one which exercises due diligence to ensure workplace safety, can possibly find itself liable for criminal negligence causing death — and exposed to substantial fines — based on the conduct of a single individual who is responsible for managing an important aspect of the organization’s activities.
Once it is established that such a person has, by act or omission, failed to take reasonable steps to prevent bodily harm to any person — including himself or herself — it appears the test for corporate liability could be met. If indeed the Criminal Code is to be interpreted to permit the collapsing of what many thought would be a two-part test (first, an assessment as to whether a representative was reckless and, if so, then considering whether senior management took the care reasonably expected to prevent the harm) into a one-part test.
This prospect is alarming for any organization. There would be extraordinarily limited opportunity for an organization to avoid liability as there is no due diligence defence to a criminal prosecution.
This risk of exposure should concern any organization that assigns management of an important aspect of its activities to an individual, such as a site, project, store or plant manager. If a serious workplace accident occurs and there is culpable behaviour by someone in such a position, police officers and prosecutors may be emboldened by the Metron guilty plea and conviction to prosecute the corporation based on the conduct of the local manager.
It remains arguable, and indeed consistent with the intention of the Bill C-45 amendments, that the preconditions for a conviction against an organization for criminal negligence remain that the Crown must first show recklessness by a representative acting within the scope of her authority, and then show a senior officer failed to take reasonable care to prevent this.
While it may be necessary to wait for further clarity from the courts on the proper interpretation of this test after a full trial dealing with the issue, organizations are well advised to take steps to manage risk through the establishment and implementation of a local health and safety program and regular, vigilant and documented monitoring of the functioning of the program and of local management.
While taking these positive measures to promote workplace safety might not legally shield an organization from prosecution for criminal negligence, depending on how the Criminal Code is ultimately interpreted where a local manager has been criminally negligent, such steps should nevertheless afford some protection.
If an organization can demonstrate that it consistently addressed health and safety in the workplace and took steps to ensure the implementation of a local health and safety program, a Crown attorney may, by prosecutorial discretion, decline to pursue criminal negligence charges against the organization, and seek to prosecute only the individual involved. If the organization is prosecuted despite its positive steps, those steps may be considered by a court as a mitigating factor at sentencing, should a conviction be entered.
It is too early to say for certain whether the Metron conviction will embolden police and prosecutors to pursue corporate criminal negligence charges against organizations, when a single individual is at fault. It is clear, though, that a proactive approach, including careful monitoring of site and workplace activities and preventive measures, remains crucial to protect workers’ health and safety, as well as the organization’s interests.
Cheryl A. Edwards is a former Ontario Ministry of Labour OHS prosecutor and now leads Heenan Blaikie's national OHS and workers' compensation practice. She can be reached at firstname.lastname@example.org or (416) 360-2897.
Jeremy Warning is a partner in Heenan Blaikie’s Labour and Employment Group and a member of its national OHS and Workers’ Compensation Practice Group. Jeremy can be contacted by e-mail at email@example.com or by telephone at (416) 643-6946.
Christina Hall is a senior associate in Heenan Blaikie’s Labour and Employment Group and a member of its national OHS and Workers’ Compensation Practice Group. Christina can be contacted by email at firstname.lastname@example.org or by telephone at (416) 643-6843.
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 email@example.com
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