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Regulators gone wild!

However, this case and the reaction of the Ontario Ministry of Labour and the Ontario Ministry of the Attorney General — resulting in both numerous charges under the Occupational Heath and Safety Act and the

Bill C-45 amendments to the Criminal Code

— can raise concern about so much emphasis on blame and criminality, and so little on prevention.

Metron Construction Corporation and three individuals related to the company have each been charged with criminal negligence causing bodily harm and four counts of criminal negligence causing death. This is part of a growing trend of police investigation and criminal charges relating to workplace injury and death arising from the Bill C-45 amendments to the Criminal Code.

The charges arise from the deaths of four migrant workers and the critical injury of another, following the collapse of a swing stage scaffold on the 13th floor of a Toronto apartment building on Christmas Eve of 2009. The incident received national media coverage. The Government of Ontario appointed the University of Toronto’s Tony Dean to conduct an inquiry into workplace safety prevention initiatives after this incident.

A crew of six men was working on repairing the balcony at 2757 Kipling Avenue when the incident occurred. A sixth worker escaped unharmed. The incident occurred when a seventh worker attempted to step onto the swing stage, causing it to break into two pieces, and the four workers fell to their death.

Last August, 61 Occupational Health and Safety Act (OHSA) charges were laid against various parties as a result of the same accident. Thirty charges were laid against Metron Construction Corporation, with an additional 16 against a Metron senior manager and 8 against a supervisor.

Furthermore, the company that supplied the work platform, Swing ‘N’ Scaff Inc., faces four charges, with its director facing an additional three charges.

The Ministry of Labour has never laid any OHSA charges against Metron in its 23 years of operation. However, in the two months leading up to the deadly incident, eight orders, including some dealing with swing stages, have been issued to Metron Construction at the job site in question.

These charges mark the fifth time that a corporation or an individual has been charged with contravention of the Bill C-45 amendments to the Criminal Code. To date, none of these cases have proceeded to trial. Bill C-45 was the legislative reaction of the federal government to the Westray Mine disaster. In May 1992, 26 miners died when an explosion and fire ripped through that coal mine in Pictou County in Nova Scotia. Criminal charges in that case were thrown out at trial due to prosecutional misconduct.

Playing the blame game

The purpose of the OHSA, the proactive prevention of workplace incidents, injuries, and death, may be lost in this layering of regulatory and criminal charges against Metron.

The internal responsibility system, the overarching concept behind the OHSA legislation, is intended to encourage all workplace stakeholders, including workers, to take responsibility for their health and safety. However, the prosecutorial reaction to the Metron case has focused on blame and not prevention.

Regardless of the outcome of all of the charges, both under the OHSA and the Criminal Code, one thing is certain: prosecutions do not prevent accidents directly or indirectly. They merely provide a general deterrent or fear of reprisal, which may motivate but not empower organizations to prevent further incidents in the future.

Although this tragic case will hopefully be an example to employers, it is important to invest in health and safety management systems, and in health and safety training and prevention, so prosecutions themselves do not dictate how companies should do prevention.

It is unfortunate that the current government, political and regulatory climate does not encourage and motivate employers in a positive way by providing resources on how to prevent workplace injuries, but rather focuses on a culture of blame.

Norm Keith

Norm Keith, an OHS lawyer and consultant, is a partner at Fasken Martineau DuMoulin in Toronto. He can be reached at (416) 868-7824 or nkeith@fasken.com, or visit www.ehslaw.ca for more information.
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