www.cos-mag.com
Jul 16, 2012

Metron sentenced to pay $200K for Christmas Eve 2009 workplace deaths

By Mari-Len De Guzman
The Ontario Court of Justice has found Metron Construction Corporation guilty of a single charge of criminal negligence causing death and sentenced the company to a $200,000-fine, following a swing stage collapse incident on Christmas Eve 2009 that killed four of its workers and left one severely injured.
In addition, the court also imposed a $90,000-fine on Metron’s president, Joel Swartz, after he pleaded guilty to four charges under the Occupational Health and Safety Act (OHSA), the highest monetary penalty imposed against an individual convicted of an offence under the OHSA, according to a report by Toronto-based law firm Heenan Blaikie.

The court released its decision on Friday, July 13th, 2012.

On December 24, 2009, six workers were on a suspended work platform at a construction project on Kipling Ave. in Toronto. The swing stage collapsed and fell 13 floors, killing four of the workers and seriously injuring another worker. The only worker properly attached to fall protection was held by the lifeline and pulled to safety.

According to the Ministry of Labour, its investigation found the deceased workers had not been properly tied off to a lifeline, and had not been properly trained in the use of fall protection. The swing stage had been overloaded and it was later determined to be defective and hazardous.

Swartz pleaded guilty under the Occupational Health and Safety Act to failing, as a director, to take all reasonable care to ensure that:
•    workers did not use a defective or hazardous swing stage;
•    the swing stage was not loaded in excess of the weight it was meant to bear;
•    workers were adequately trained in the use of fall protection by a competent person;
•    Metron Construction Corporation prepared and maintained written training and instruction records for each worker.

The Ontario Federation of Labour (OFL) has criticized the court decision and called on the Crown to appeal the fine.

“Today’s ruling is disgraceful," said Sid Ryan, OFL president, following the sentencing on Friday. "It says that a worker’s life is worth no more than $50,000 and many bad bosses across the province will simply chalk it up as the cost of doing business.”

“If the judge had concerns about Metron owner Joel Swartz’s ability to pay the million-dollar fine sought by the Crown, he should have done the right thing and thrown Swartz in jail.”

Last year, 436 Ontario workers died from workplace accidents or occupational diseases and over 240,000 injury claims were filed, Ryan said. "As long as bad bosses are allowed to escape personal responsibility by hiding behind the corporate veil, the justice system is failing victims and their families,” he said.

According to the Heenan Blaikie report, the facts heard by the court reveal that Metron has taken positive steps relative to workplace health and safety prior to the fatal incident. "The facts accepted in court reveal that Metron has taken several steps inconsistent with wanton and reckless disregard for the lives and safety of the workers on the project," said the report, which was authored by lawyers, Chery Edwards, Jeremy Warning and Shane Todd.

The steps include: cooperating and complying with all requests from the Ministry of Labour inspector and having periodic meetings with the inspector; arranged for the project manager to take a three-day swing stage training course and a Construction Safety Association of Ontario course on how to train workers about safe and proper use of suspended platforms; arranged for the site supervisor and other workers on the project to take a fall arrest training course.

The facts also revealed, however, that it was the conduct of the site supervisor — who was also one of the deceased — that exposed Metron to criminal liability. Prior to the Christmas Eve 2009 incident, the site supervisor directed or permitted six workers to work on the swing stage even though he knew, or should have known, that it was unsafe to do so. The site supervisor also permitted six workers to board the swing stage with only two lifelines available, and permitted workers under the influence of alcohol to work on the project.  

Metron's conviction and $200,000-fine was pursuant to the Bill C45 amendments to the Criminal Code of Canada relating to workplace safety, which have been in force since 2004. Police laid criminal charges against the company.

This is the first corporate criminal negligence conviction in Ontario under Bill C45. In 2008, a Quebec company was convicted of criminal negligence causing a workplace death, and was sentenced to a $100,000 fine. The sentences on both Metron and Swartz have been the highest monetary penalties imposed for a workplace accident under the Criminal Code and the OHSA, according to Heenan Blaikie.

The fines were imposed by Judge Bigelow of the Ontario Court of Justice. In addition to the OHSA fines, the court imposed a 25-per-cent victim fine surcharge, as required by the Provincial Offences Act. The surcharge is credited to a special provincial government fund to assist victims of crime.

Other defendants facing charges stemming from this incident are still before the court, the Ministry of Labour said.