Canadian Safety Reporter

OCTOBER 2013 Supervisor played big role Continued from page 11 economic viability of the organization and the continued employment of its employees." It was that provision the trial court used, together with the evidence and submissions of counsel before they met at trial, to determine a fine in the amount of $200,000 was appropriate. However, the Court of Appeal indicated this provision should focus more on the ability of the corporate defendant to pay — provided they continue employing workers — rather than its continued economic viability generally. "(In) the case of a corporation that carries on no or limited business and has no or few employees, the impact of a fine on a corporation's economic viability may be of little consequence," the Court of Appeal said. The Court of Appeal also reviewed the United Kingdom sentencing guidelines to support its conclusion that the fine against Metron was too low. "Any public interest from the continued viability of the respondent was not manifest. The sentencing judge placed undue weight on the respondent's ability to pay," the Court of Appeal said. Fitness of sentence The final issue on the appeal was whether or not the sentence was "manifestly unfit." This resulted in the Court of Appeal criticizing the trial court on the assessment of a $200,000 fine. The court did acknowledge that president and sole director Joel Schwartz had been convicted under the applicable OHSA and personally fined $90,000. The court also recognized both he and Metron had no prior record or outstanding Ministry of Labour orders at the time of the event. The Court of Appeal then came back to reinforce the responsibility of Fazilov as the first line supervisor, who bound the corporation by his actions even though he was under the influence of illegal drugs. In my opinion, it remains an open question whether Fazilov was truly a "senior officer" of Metron and whether this was an appropriate consideration for the Court of Appeal to seize on to dramatically increase the fine. 12 "The criminal negligence of Fazilov, for which the respondent is criminally liable, was extreme. Three times as many workers were on the swing stage when it collapsed than was usual practice. In addition, three times as many workers were on the swing stage than there were lifelines available and even then only one of the lifelines was properly engaged," the court said. This seems to place higher criminal liability and a higher monetary penalty on Metron due to the mistake made by a first line supervisor. This application of Bill C-45's new definition of "senior officer" and the new formula for organization guilt, does not necessarily relate to a higher fine, but rather the basis of the conviction itself. The Court of Appeal increased the fine from $200,000 to $750,000 because of the "nature and gravity of the events, the victims, the principle set forth in Section 718 and the specific factors described in 718.2(1) of the Criminal Code." The appeal decision may be understood in light of its concern to emphasize general deterrence more than the trial judge did, but at the expense of the primary goal of criminal sentencing — specific deterrence in a unique set of facts that is likely to never be repeated. The high fine against a small corporation, Metron — which may never be fully recovered if the company is driven into bankruptcy — is of questionable value for promoting prevention. However, one thing is very clear from the Court of Appeal's decision: If and when employers are convicted of OHS criminal negligence, their punishment may be severe beyond the point of undue hardship. One can only imagine the type of fine, in similar circumstances, a much larger corporate employer may have faced. The other sobering fact is there is no upper limit to fines that may be imposed on a corporation when they are prosecuted under a Bill C-45 offence, as a result of the Westray Mine Disaster amendments to the Criminal Code. Norm Keith is an employment lawyer at Fasken Martineau in Toronto. He can be reached at (416) 868-7824 or nkeith@fasken.com. Canadian HR Reporter, a Thomson Reuters business 2013 www.safety-reporter.com Published 12 times a year by Thomson Reuters Canada Ltd. 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