Canadian Safety Reporter

CANADIAN SAFETY REPORTER Court increases Metron safety fine to $750,000 THE ONTARIO COURT OF APPEAL has rendered its decision in the sentencing appeal involving Metron Construction, the employer of the four workers who died on Christmas Eve 2009 in Toronto. Metron eventually pleaded guilty to a Bill C-45 offence for its criminal negligence arising from the deaths. The trial judge imposed a fine of $200,000 after reviewing all of the facts, circumstances, and legal requirements for sentencing a corporation under the Bill C-45 amendments to the Criminal Code. The Crown appealed. The Court of Appeal heard the Crown's appeal argument that the $200,000 fine was too low and an unfit sentence. The judgement on that appeal was released on Sept. 4. The Court of Appeal dramatically increased the fine against Metron to $750,000, describing it as a "fit fine in the circumstances." The facts of this case go back to the beginning of the project where the incident occurred. In September 2009, Metron entered into a contract with the owner of two high-rise buildings to do restoration work on concrete balconies. There was an initial attempt to secure appropriate scaffoldings and swing stages but, due to supplier issues, the project was delayed. Two swing stages were eventually delivered to the project site in late October 2009 without any instructions on how to assemble the various parts. There was no report prepared by a professional engineer stating the swing stage had been erected in accordance with design drawings, as required by regulation for construction projects under Ontario's Occupational Health and Safety Act (OHSA). As part of the plea bargain agreement with the Ministry of Labour and the Crown, the charges relating to violations of the OHSA and the regulation for construction projects were withdrawn. Metron, as a result of this plea bargain, agreed to plead guilty to one count of contravening Bill C-45 under the Criminal Code. On the day of the accident, five workers plus a supervisor — Fayzullo Fazilov — boarded one of the swing stages to travel from the fourteenth floor to the ground. At the time, there were only two lifelines to provide workers with safety NORM KEITH LEGAL VIEW redundancy if the swing stages failed. The combined weight of the workers and the equipment caused the swing stage to collapse, opening as a drawbridge, and the workers fell to their death. The Court of Appeal decision seemed to play down the fact three of the four deceased workers tested positive for the active ingredient in marijuana. However the court acknowledged the site supervisor, Fazilov, was one of the individuals who was apparently under the influence of marijuana. The Court of Appeal appears to have ignored that fact as relevant for the purpose of assessing a proper sentence for Metron. Without an admission that the supervisor was a 'senior officer,' the crown could not have secured a conviction. One of the critical admissions Metron agreed to as part of the plea bargain agreement is that Fazilov was a "senior officer" of Metron. This was an essential admission for the corporation to make to ensure its plea bargain was accepted by the trial court. The new formula for guilt, in a criminal negligence causing death charge under the Bill C-45 amendments, requires that a senior officer departed from the standard of care that has reasonably been expected to ensure representatives were safe at the work site. In other words, without the admission that Fazilov was a "senior officer," even though he was a first line supervisor, the Crown could not have secured a Canadian HR Reporter, a Thomson Reuters business 2013 conviction under Bill C-45. The Court of Appeal was only dealing with a sentence appeal so the legal issue of whether or not Fazilov truly was a "senior officer" was never disputed or argued before the trial court or the Court of Appeal. This critical issue was one of the "elephants in the room" not addressed by any court in this case. On appeal, the crown argued the trial judge had committed three legal errors relating to the following — jurisprudence from OHS regulatory prosecutions; the corporation's ability to pay; and the general fitness of the sentence in the circumstances. Jurisprudence from regulator prosecutions The Court of Appeal held the first ground of appeal had no merit since the Crown prosecutor, in the sentencing before the trial court, had invited and even encouraged the court to consider the range of OHS fines from a regulatory prosecution. They were in the range of $115,000 to $450,000. The Court of Appeal made reference to the $100,000 fine given to Transpavé, a Quebec corporation criminally prosecuted in a workplace death where there was a joint submission for a fine of $100,000 and it was deemed appropriate by the Quebec court. In the sentencing appeal, the Court of Appeal failed to distinguish the Transpavé case from Metron, but did not follow it. The Court of Appeal did not criticize the trial court for considering cases under OHS regulatory statutes. Ability to pay Regarding the fitness to pay ground of appeal, the Court of Appeal was scathing in its criticism of the trial court on the conclusions it drew from evidence, and submissions of both Crown and defence counsel, regarding Metron's ability to pay. Interestingly, Bill C-45 gave the trial judge jurisdiction over the issue of economic viability of a penalty on a corporate defendant. Section 718.21(d), of the Criminal Code — part of the Bill C-45 amendments — expressly states, "the impact that the sentence would have on the Continued on page 12 11

• Cover