$750K Fine for “Extreme” Criminal Negligence: “More Serious” than OHSA Offences, says Appeal Court in Metron Construction Fatality Case

A $200,000.00 fine was “manifestly unfit”, the Ontario Court of Appeal has ruled, in raising Metron Construction’s fine to $750,000 for criminal negligence after four workers died on Christmas Eve, 2009.  The $200,000 fine imposed by the sentencing judge failed “to convey the need to deliver a message on the importance of workplace safety.”

The workers died when a swing stage – a suspended scaffold – collapsed fourteen floors up a building when six workers boarded, whereas the usual practice was only two workers.  Three of the four workers who died had marijuana in their system at a level consistent with having recently ingested the drug.   The court noted that all of the workers were of limited financial means.

Metron pled guilty to criminal negligence charges, under provisions added to the Criminal Code in 2004 by Bill C-45.  The only issue on the appeal was the amount of the fine.  Metron’s owner had pled guilty to four charges under the Occupational Health and Safety Act and was personally sentenced to pay a fine totaling $90,000.  All criminal charges against the owner were withdrawn.

The appeal court noted that criminal negligence was “a different and more serious offence than those found under” the Occupational Health and Safety Act, for which the “cases revealed a range of fines between $115,000 and $425.000 for cases involving fatalities.”

The sentencing judge had made two main errors in imposing a $200,000 fine, the appeal court said. First, although the sentencing judge was entitled to consider the range of fines imposed under the Occupational Health and Safety Act, he failed to appreciate the “higher degree or moral blameworthiness and gravity associated” with Metron’s conviction for criminal negligence causing death.  Second, the sentencing judge was wrong to consider Metron’s “ability to pay”, which was a factor that courts could consider in setting the fine for individual persons but not corporations in criminal negligence cases.

The sentencing judge was, however, entitled to consider the “economic viability of the organization and the continued employment of its employees.” Interestingly, the appeal court held that in appropriate cases, it was permissible for criminal negligence fines to bankrupt a corporation.  In this case, the financial statements submitted by Metron were “heavily qualified and incomplete” and suggested that there were no employees being paid anymore.  As such, “[a]ny public interest in the continued viability of [Metron] was not manifest.”

Finally, the appeal court noted that the criminal negligence of the site supervisor, for which Metron was responsible, was “extreme”.  Three times as many workers were on the swing stage than there were lifelines available, and only one of the lifelines was properly engaged.

R. v. Metron Construction Corporation, 2013 ONCA 541 (CanLII)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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