When Unsafe Work is Criminal

Lawyers often say that law touches every area of life, but employment is an area of life that touches many different types of law. It’s one of the things that I find so fascinating about my work: a policy can be perfectly acceptable under labour law, but what about human rights? Health and safety? Privacy? Because of how important the workplace is to our daily lives, it’s a place where different regimes stack and layer on top of one another.

Metron Construction adds another legal regime to the mix, one that I don’t normally see in my day-to-day work: criminal law.

The Tragedy

Many Torontonians still remember watching news stories about the Metron Construction tragedy in 2009. Six construction workers were working at the fourteenth storey of a high-rise construction site, when the swing stage they were standing on collapsed. Only one man was wearing fall protection and escaped unharmed. Of the other five workers, four plunged to their deaths; the fifth miraculously survived the fall, suffering serious injuries.

As if it were even possible, the story gets worse.

There should never have been six people on the swing stage. It was designed to hold only two people at a time. That may be why there were only two fall-arrest harnesses between the six workers, instead of one per person as there should have been, which could have saved their lives. All of the workers were recent immigrants to Canada from Eastern Europe or Central Asia.

Oh, and it happened on Christmas Eve.

It was an event that shook people’s faith. Torontonians see their city, and Canadians see their country, as places where this sort of thing should not be allowed to happen. They’re right.

On the legal side, it was time to bring in the big guns.

The Charges

To understand what makes this case different from most cases involving workplace injuries, we have to look at the normal regime that governs workplace safety.

The Occupational Health and Safety Act (OHSA) in Ontario, and its equivalents in the other provinces, impose a number of duties on employers, general contractors, supervisors, workers and others to ensure that work is done safely. The duties range from the very specific (a guardrail must be between 91 and 107 centimetres, or 36 to 42 inches, above the floor) to the very general (employers must take all precautions reasonable in the circumstances to protect workers). A breach of these duties can lead to charges being laid.

We call these “quasi-criminal” charges, because they come from (in this case) safety regulations rather than the Criminal Code, but the process is fairly similar to the criminal one. Charges are laid, disclosure is given, the accused pleads guilty or not guilty, the prosecution has to prove its case beyond a reasonable doubt, and if the defendant is found guilty, the judge imposes a sentence.

A few years before the Metron event, however, the Criminal Code was amended to make it easier to prosecute companies for criminal offences having to do with worker safety. That was what made the Metron case different. The two regimes, OHSA and criminal, were applied at once.

So while the president of the company was pleading guilty to four OHSA charges (as part of a plea bargain that saw criminal charges withdrawn and allowed him to avoid jail time), the company itself was pleading guilty under the Criminal Code, to criminal negligence causing death. There was no plea bargain with the company, so the prosecution and the defence argued over the sentence in front of a sentencing judge.

As the judge, how do you decide what a fine should be in a case like this? Since the new Criminal Code provisions had rarely been applied before, there were few places for the judge to turn for guidance. The judge ended up relying on the fines that were imposed in similar cases under the OHSA, and also considering a number of other factors, including the company’s ability to pay.

The result? A fine of $200,000. Some public outrage. And an appeal by the prosecution to the Ontario Court of Appeal.

The Metron Construction Decision: Not in Kansas Anymore

The Court of Appeal released its decision in R. v. Metron Construction Corporation on September 4, 2013. The message: just because it’s a workplace safety incident doesn’t mean that we should use OHSA sentences. Criminal negligence is one of the most serious offences in the Criminal Code, and a sentence has to reflect that fact.

For one thing, if similar OHSA offences attracted fines between $115,000 and $425,000, then a criminal fine ought to be even higher. At the very least, it shouldn’t be toward the bottom of the range, like the original $200,000 fine was.

For another, once the Criminal Code is involved, you don’t need to worry as much about whether your fine is going to bankrupt the company. Those kinds of thoughts may make a lot of sense when you’re trying to enforce safety regulations – it kind of defeats the purpose if you bankrupt the company you were trying to regulate. But the Criminal Code is different. It’s not about regulation, it’s about public standards of behaviour. The purposes of a sentence include denouncing criminal activity and deterring other companies from doing the same. The company’s ability to pay should be taken into account, but it is far from the be-all and end-all.

In short, when you’re a corporation charged with a serious criminal offence, you should expect to face serious criminal sentencing. In the words of the Court, “The respondent was convicted of a very serious offence.  It is a different and more serious offence than those found under the OHSA.” We are not, so to speak, in Kansas anymore.

The Bottom Line

The company’s fine was increased from $200,000 to $750,000, and a statement was arguably made: companies had better be diligent about worker safety, because if they’re not, they have more than just the OHSA to worry about.

Some may argue that the fine was still not high enough. I’m not so sure. It certainly seems to me that the new fine was more appropriate than the old one, but $750,000 for a relatively small company strikes me as sufficient to drive home to other corporations that worker safety is important. Sadly, with an after-the-fact punishment, encouraging other companies to pay attention to safety is the best that we can really hope for.

And while many will say that the company president ought to have served jail time, the fact is that the supervisor whose negligence was most to blame for the tragedy has already served a much harsher sentence. He was one of the four who died on the swing stage.

Which just drives home what, for me, is the real point. For all of our talk about denunciation and deterrence, the facts on the ground make the entire sentencing analysis ring a bit hollow. Four people are dead, and no matter what fine we impose, it is not going to bring them back. The vast majority of the companies that I work for take pride in their health and safety programs, and would find the incident appalling, and that is what matters. It is the four deaths in and of themselves that ought to make us pay closer attention to workplace safety, not the fine that attaches to them.

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