On Christmas Eve, 2009, four workers died and a fifth was seriously injured when the scaffold they were standing on to effect repairs to the exterior of an apartment building in Etobicoke, Ontario collapsed and fell thirteen stories to the ground below. The accident resulted in rare charges of criminal negligence causing death against the construction company, Metron Construction, and its owner and President, Joel Swartz. None of the four workers killed – including supervisor Fayzullo Fasilov – were wearing lifelines at the time of the accident. The fifth worker survived because he was wearing a lifeline, although it malfunctioned at the time of the accident. A sixth worker escaped unharmed due to a functioning lifeline.
Recently, Metron Construction became the first Ontario company in history to plead guilty to charges of criminal negligence causing death. The Toronto Star was apparently in the courtroom at the time and reported on the contents of the agreed statement of facts – a document prepared jointly by prosecutors and defence lawyers that is read into court during a guilty plea. The Star quoted the document as stating that Metron Construction’s guilty plea was a direct result of the acts and omissions of its supervisory employee, Mr. Fasilov, whose role within the organization was of sufficient authority to render Metron Construction legally responsible for his acts and omissions. The Star reported that the agreed statement of facts went on to state that Mr. Fasilov failed to take reasonable steps to prevent harm and death by directing or permitting workers to work on a scaffold when he knew or should have known it was unsafe and that he directed the workers to complete the work knowing that only two lifelines were available. The Star also said that a section of the agreed statement of facts indicated that Mr. Fasilov had permitted employees to work while under the influence of drugs, as a toxicology analysis had confirmed that three of the four workers killed, including Mr. Fasilov, had marijuana in their systems from recent ingestion.
Prosecutors and lawyers for Metron Construction are continuing to make submissions to the court on the appropriate fine to be levied against Metron Construction. Prosecutors are reportedly seeking $1,000,000.00.
The Star also reported that prosecutors have dropped the charges of criminal negligence causing death against Mr. Swartz on the basis that they believed there was no reasonable chance of conviction, but that Mr. Swartz has pleaded guilty to four offences under the Occupational Health and Safety Act including: failing to take reasonable care to ensure a worker using a fall protection system received adequate training, failing to keep proper training records, failing to take reasonable care to ensure a suspended scaffold was properly maintained to protect a worker’s safety and failing to comply with all aspects of construction regulations. The Star indicated that prosecutors and defence lawyers have agreed to fines of $22,500.00 for each count, but that this joint submission on fines remains to be approved by the court.
The publicity around this case may generate renewed interest, from both the public and criminal prosecutors, in criminal safety prosecutions against Ontario employers. Although the facts of the Metron Construction case are extreme, one thing is clear from this and other Bill C-45 criminal safety cases: charges are most likely where death or serious injury results from a hazard that was known to the employer or a supervisor but was not addressed.
We will keep you updated as more information unfolds about this case.