“Is it legal to steal information from your employer?”

Most questions that start with “Is it legal to steal” lead to answers that start with “No.” But let’s delve into this one in a bit more detail.

You see, WordPress shows me the search terms that people use to find this blog, and earlier today somebody actually found Legal Gateways by searching, “is it legal to steal information from your employer?” Unfortunately, that person would not have actually found the answer to their question here, which I thought was a shame. So — understanding that this is not legal advice, and that I can’t say anything about any individual’s situation — here is a general answer, at least under Canadian law.

To answer the question, we have to figure out what we mean by “information,” and what we mean by “steal.”

Employees do have obligations to protect their employers’ confidential information, which continue even after the employee resigns or is terminated. The first question to ask, then, is whether the information is confidential. Many employers will have their employees sign confidentiality agreements, which will define exactly what information is considered confidential. In the absence of an agreement, however, employees still have a duty of confidentiality, and they are expected to use a degree of common sense to figure out what sorts of information an employer would expect them to keep secret.

Things that would be covered likely include sensitive commercial information, like costs, pricing structures and customer lists; corporate strategies; trade secrets, such as processes, recipes or methods for creating the product or delivering the service; information that the company is required by law to keep confidential, such as personal information about individual customers or employees; and any other information that the company would reasonably be upset about falling into a competitor’s hands.

Information is not “confidential” if it is already in the public sphere — as long as it didn’t get there by somebody else breaking their own confidentiality obligations!

So, no, it is not legal to disclose your employer’s (or former employer’s) confidential information, if that is what we mean by “stealing” it. Since it may be very difficult to use the information without disclosing it, that will end up closing the door to a lot of the purposes of “stealing.” That said, certain uses of information might be acceptable, if the information can be used without being disclosed. Misappropriating trade secrets is probably not okay, and neither is using information in a manner that would violate a copyright or trademark. But soliciting the employer’s customers — using information about who those customers are — may well be okay as long as there isn’t a contract which specifically prohibits it.

(Even when there is a contract prohibiting it, courts are very sensitive about when those contracts will be enforced. If you are an employer, and want to have your employees sign non-solicitation or non-competition agreements that will actually be legally binding on them, that is an area where you really should get advice from a qualified employment lawyer).

That said, what an employer cannot control is what is in its employees’ heads. Employees can’t be expected to simply forget knowledge acquired and information learned. Even if information came from the employer originally, once it is part of an employee’s knowledge and memory, it becomes very difficult for an employer to claim an exclusive right to it. To the extent that information is confidential, the employee may not be able to disclose it, but they can certainly use their own knowledge and memories.

You may have noticed that I have been stressing the ideas of disclosing and using an employer’s information, which seem to me to be more meaningful than the concept of stealing it. Taking your employer’s information and putting it in a box in your basement is unlikely to be too objectionable, unless your employer has specific policies about that or you’re in an industry which is especially sensitive to confidentiality, like banking or health care or national security. But why would you take your employer’s information if you didn’t intend to use it? Is the type of use you’re considering inherently wrong, for example because it would violate a copyright or trade secret protection? And in any event, practically speaking, would you be able to use it without disclosing it? Or is the information not actually confidential in the first place because it’s already public knowledge? These are the types of questions that we need to ask.

One final point: a lot of what I’ve talked about so far assumes that the employee is no longer with the employer. But if the employee is still employed, there is a whole new set of concerns. The employee will have a much higher duty of faithfulness to the employer while still employed, and will want to be much more careful to not use the employer’s information in a way that might be contrary to its interests.

This really only scratches the surface of the question, and it’s a bit difficult to answer without knowing what “steal information from your employer” means. But the bottom line is, whenever your question starts with the words “is it legal to steal,” you should, at the very least, proceed with caution.

Supreme Court of Canada will hear Right to Strike Case

I’m finally bringing this blog back to labour law, with the news that last Thursday, the Supreme Court of Canada granted leave to appeal a decision raising an interesting and timely question: does the Canadian Constitution protect the right to strike?

strike

Stock photo from http://www.sxc.hu/photo/1197558 . I wanted a better photo for this, but apparently searching “strike” gets you bowling pictures, and searching “picket” gets you fences.

Background: The Labour Trilogy, B.C. Health Services and Fraser

The Supreme Court decided three  cases on the issue back in 1987, which came to be known as the Labour Trilogy. The question in those cases was whether the guarantee of freedom of association in the Charter of Rights and Freedoms (Charter) included a constitutional right to collective bargaining and to strike. The answer was no, and that answer stood for 20 years.

Then, in 2007, the Supreme Court decided B.C. Health Services. In that case, the province of British Columbia introduced legislation that cancelled important terms of collective agreements in the health care sector, and said that no similar terms could be included in health care collective agreements in the future. In response, the Supreme Court overturned its own previous decisions in the Labour Trilogy and said that the Charter does protect collective bargaining. The Court explained that there’s not much use in having freedom of association, if the government can just pass a law which makes the very purpose of your association pointless. That was what the B.C. government did when it unilaterally cancelled important collective agreement terms. What was the point, then, of health care workers forming an association (a union) to bargain collectively?

What B.C. Health Services did not address was the right to strike. The Court deliberately refused to discuss that question.

Following B.C. Health Services, unions began a number of constitutional challenges to labour laws that they alleged interfered with the right to collective bargaining. The Supreme Court decided to weigh in again in Ontario v. Fraser, a 2011 decision about agricultural workers in Ontario, who are not covered by the Labour Relations Act. They have a separate legal regime which allows them to form associations and have those associations address their employers; the employers have an obligation to listen and respond. But there is no formal duty of collective bargaining, there is no duty to recognize the union as the exclusive representative of the workers, and other protections that most Ontario workers get are absent.

Fraser did not exactly change the law in B.C. Health Services — in fact, the Court was very careful to say that it was applying the principles from that earlier case — but it did clarify B.C. Health Services in a way that looked quite a lot like a retreat.  Fraser stressed that from a constitutional point of view, the right to collective bargaining is a derivative right: one that derives from the freedom of association. Therefore, you don’t necessarily get constitutional protection just because the government has interfered with collective bargaining. You only get constitutional protection if the government’s actions (or inaction) make meaningful association effectively impossible. For agricultural workers, since they can form associations and the employers must listen to what the associations say and respond in good faith, workers are able to form meaningful associations. That is good enough under the Charter. Again, however, the Supreme Court did not talk about the right to strike.

Saskatchewan Federation of Labour and the Right to Strike

In 2008, the government of the province of Saskatchewan passed the Public Sector Essential Services Act. It requires employers and unions in the public sector to agree on which of their services are essential, and which employees are required to maintain those services. Any employees who are required to provide essential services will have to continue working during a strike. However, if the employer and the union cannot agree, then the employer is allowed to just impose whatever essential services requirements it wishes. The union can challenge the number of employees who the employer says it needs for essential service, but it cannot challenge whether particular services or particular job classifications are essential.

The Saskatchewan Federation of Labour, along with several public sector trade unions and unionized employees, brought a constitutional challenge alleging that the Essential Services Act violated workers’ freedom of association by denying them the right to strike (along with a number of other challenges). The Saskatchewan Court of Queen’s Bench agreed, based on the principles in B.C. Health Services and Fraser. It found that strikes are integral parts of collective bargaining, so if the Charter protects collective bargaining, it must protect strikes as well.

That decision was overturned by the Saskatchewan Court of Appeal, on a fairly technical but still important ground. The old Labour Trilogy, the Court of Appeal said, found that the Charter does not protect the right to strike. B.C. Health Services and Fraser overturned the Labour Trilogy when it came to collective bargaining, but refused to discuss the right to strike. Therefore, when it comes to the right to strike, the Labour Trilogy is still a binding precedent from the Supreme Court of Canada. It was simply not open to the Saskatchewan courts to refuse to follow it. In the words of the Court of Appeal:

In short, any decision to overturn the Labour Trilogy must be left in the hands of the Supreme Court itself. This is what the doctrine of stare decisis [i.e., the rule of precedent] demands. It follows that the Essential Services Act cannot be struck down on the basis that it limits strike activity contrary to s. 2(d) of the Charter.

After that, how could the Supreme Court say no?

A New Labour Trilogy?

The Supreme Court’s decision last week to grant leave to appeal in Saskatchewan Federation of Labour follows on the heels of granting leave for two other labour law cases, both involving the Royal Canadian Mounted Police. They have never been permitted to unionize, but they have various systems where worker representatives get to participate in committees and councils which help determine their pay. The Ontario Court of Appeal and the Federal Court of Appeal each made recent decisions which denied the Mounties constitutional protection for these types of bargaining activities.

In fact, the Ontario Court of Appeal also found for the employers in two other labour law freedom of association cases in 2012. In those cases, the Supreme Court refused to grant leave to appeal. Our firm actually represented the employer in one of those cases, and I was heavily involved in preparing the arguments. It was an extremely interesting case, and very rewarding (and relieving) that we were successful. When the Supreme Court denied our opponents leave to appeal, we got the impression that the Court, having decided similar issues in 2007 and again in 2011, just didn’t see the need to revisit them so soon.

But now the two Mountie cases and the Saskatchewan Federation of Labour case will be heard by the Supreme Court of Canada in 2014. The Mountie cases are scheduled to be heard in February. It’s unlikely that Saskatchewan Federation of Labour will be ready quite that soon, but I wouldn’t be surprised if the Supreme Court waits until it can release all three decisions together as a new Labour Trilogy. Hopefully, it will be one that clarifies the law for a while, and avoids the volume of litigation on these issues that we’ve seen since B.C. Health Services and Fraser were decided.

Some Bios

As this is a professional blog, I’ve kept the “About” page to a professional bio, but I thought that some readers might want a broader sense of me. So here are some other bios I’ve written about myself for other purposes.

From a writing point of view, here is the bio I penned for my Smashwords author profile:

I’ve been writing fiction since I was five years old, when I penned a charmingly mis-spelled epic about my then-favourite sport — “baceball” — and I’m very excited to join the Smashwords community and, in the near future, share some of my more recent writing.

I work as a labour and employment lawyer in Toronto, Canada — check out my blog (linked in this profile) for a sense of the interesting issues I deal with day to day. Outside of work, while I’m less enamoured than I once was with “baceball,” I’ve replaced it with a hobby and passion that I find even more creative, exciting, and easy to spell: swing dancing. In addition to the joy of dancing itself, I also serve as President of Toronto Lindy Hop, a not-for-profit swing dance organization, which I find incredibly rewarding.

Current writing projects: preparing my debut novel for publication, likely in late 2014, and making plans for a very different and more personal novel inspired by my experiences in the swing dance community.

And when it comes to dancing, I wrote this bio (also quite professional-sounding, in hindsight) for Toronto Lindy Hop:

Brian has been lindy hopping for more than a decade and has a passion for spreading the joy of the dance. Brian co-founded and served as the first President of the University of Toronto Swing Dance Club, one of Toronto’s most successful swing dance organizations. He then served Toronto Lindy Hop as Treasurer before moving to Ottawa, where he studied dancing and scene-building with Swing Dynamite. Brian is thrilled to be back home in Toronto with the opportunity to lead Toronto Lindy Hop in its mandate to enrich Toronto’s dance experience.

Enough about me, though. Why do you blog, and what’s brought you here?

“Your Honour, the Cow Precedent is Distinguishable!”: The Common Law, Part 2

Image

(Stock photo from http://www.sxc.hu/photo/1427863)

Happy Thanksgiving, everybody!

In Part 1 we talked about the basic principles of the common law legal system. We talked about the rule of precedent, that similar cases must be decided the same way. We also talked about how, if we don’t want a certain precedent to apply, we can try to “distinguish” it to show that it’s not actually similar to the current case. Then we ran through a couple of examples where it was pretty intuitive whether the current case was similar to, or distinguishable from, a case that we called the Cow Precedent.

But what if it’s not obvious? No two cases are ever going to be identical, so how do we know whether our case is different enough that the precedent will not apply to it? And if all cases are different from one another, how can we rely on precedents to build legal arguments?

Reasons

The first place to look is the reasons for the precedent decision. Judges normally provide reasons which set out the facts of the case, the law, and how the law applies to the facts to reach a conclusion. That usually gives lawyers most of the fodder they need.

For example, I recently argued a case where my opponent cited a well-known Supreme Court of Canada decision, which says that employers have a duty to treat employees fairly and in good faith in how they go about terminating (firing) them. Our case didn’t involve a termination, though. It involved a retirement. My opponent argued that shouldn’t matter. The Supreme Court was concerned with treating people fairly when their employment ends, and that’s the same regardless of whether it’s a termination or a retirement – in the lingo of Part 1, regardless of whether you’ve stolen a cow or a horse.

In order to distinguish it, I went to the Supreme Court’s reasons, and tried to show that the Court’s real concern was that having your employment terminated is a traumatic experience and leaves you vulnerable. Employees need extra protection in those circumstances. These concerns don’t arise, I argued, when you’re voluntarily choosing to retire. So the reasons for imposing a duty of good faith on the employer didn’t exist in our case. The Cow Precedent was distinguishable.

(Of course, I still spent most of my time arguing that my client, the employer, had acted fairly and in good faith. Arguing that you didn’t need to be fair is never going to play well, even if it’s legally accurate.)

That’s just a single example, but it shows how legal arguments work in practice. Both sides are trying to draw out a principle from the precedent case. For my opponent, the principle was, employers must treat employees fairly when their employment ends. For me, the principle was, employers must treat employees fairly when terminating them. Both of us pointed to quotes from the Supreme Court’s reasons to support our views of what the Court was really trying to say. And depending on what the Court was trying to say, the precedent either applies to our case, or it does not.

Compare and Contrast

Most of the time, though, you’re not just going to have the Cow Precedent. There are going to be multiple precedents, some which support one side, and others which support the other. What do you do then?

Believe it or not, this is actually the easier scenario, for the simple reason that you have more data points. If there is only one precedent, you have to really analyse its reasons to figure out what legal rule it is trying to create. Having multiple precedents makes this easier by allowing you to compare and contrast. I literally do that high-school-type analysis on a weekly basis. Applied to my field, it looks like: What do all the cases where the union wins have in common? What do all the cases where the employer wins have in common? What does that tell us about what the law is? And based on that analysis, what’s likely to happen in the current case?

Let’s go back the Cow Precedent, and remember how it was distinguished in the Jacket Case: in the Cow Precedent, the theft was deliberate, while in the Jacket Case, there was an honest mistake. It might be difficult to come up with any general principles based on either of these cases individually, but when you read both of them together, it’s obvious that there’s an important distinction between taking something that doesn’t belong to you deliberately and doing so accidentally. That principle, based on comparing and contrasting the precedents, is what you can apply in a future case.

Other Techniques

There are, of course, a number of other techniques in legal reasoning. Sometimes, when there is no precedent which applies (or when the only precedent is distinguishable, which, legally speaking, is the same thing), lawyers go back to first principles, the basic foundations of the legal system and our society. That’s what we all did in Part 1 when we instinctively knew that there should be no legal difference between stealing a cow and stealing a horse. Theft is inherently a violation of private property rights, and it really doesn’t matter what private property is being stolen.

But there have been cultures throughout history with little conception of private property, and there are also cultures who revere cows as sacred. It would be easy enough to imagine a society that combined these traits, where taking a cow without permission would be a serious crime, but taking a horse would not raise eyebrows.

Another technique, if you don’t have a precedent that’s directly applicable, is to reason by analogy to other circumstances. The rule of precedent may not strictly apply, because the cases you’re relying on aren’t “similar” to yours, but the reasoning might still be persuasive.

Wait, wait, wait. For all this talk about cases, don’t we have actual laws?

A lot more could be said about the common law legal system, but that is it in a nutshell –using precedents and the process of legal reasoning to create and identify legal rules. But when I try to explain this, people usually say, “That can’t be our whole legal system! Don’t we have a government and a legislature that actually pass laws?” Of course we do, but in our system, those laws weave together with the common law (the body of judge-made law), and more importantly, with the type of common law reasoning that we’ve been talking about. In Part 3, we’ll see how that works.

“Your Honour, the Cow Precedent is Distinguishable!”: The Common Law, Part 1

We’re going back to the basics today: cows, jackets, and how the common law legal system really works.

This is going to be a multi-part series, because it actually takes that long to wade through the system’s various layers. If it weren’t complicated, we wouldn’t have law schools, and lawyers wouldn’t command the prices that we do.

Ultimately, though, I think it’s very important for non-lawyers to have at least a basic level of legal literacy. Law touches so many areas of life that understanding how it works is an essential part of living in a democracy. We should be able to read news articles about Supreme Court decisions (or even read the decisions themselves) and be able to assess them intelligently. And certainly for any person or business who needs to engage a lawyer, it will help you to get what you need out of that relationship, with more control over quality and costs, if you understand the way the law works and the way lawyers have been trained to think.

Even if it’s done through silly examples. I like silly examples.

While this series will have a Canadian focus at times, it really applies to any common-law country: Great Britain, the United States, Australia, New Zealand, and anywhere else that has adopted the British model.

One more initial caveat: I’ve never actually studied legal theory, and some of my friends who have might tell me that this is far too simplistic or just plain wrong. I am, however, a practicing lawyer in a litigation department, which is constantly using legal reasoning to try to persuade judges and arbitrators of things. This perspective is the underlying basis for how I think about legal reasoning and constructing legal arguments. To paraphrase former Prime Minister Jean Chretien, the common law works better in practice than in theory.

All right? Let’s get started.

Precedents and Common Law

I think that most people in common law countries have, at the very least, heard about the idea of precedents: if one judge decides a case one way, future judges must decide similar cases the same way. The first decision creates a precedent which later judges must follow.

In theory, judges don’t make law. They only interpret it. But in practice, that is exactly what they do. Because of the system of precedent, any time a judge decides a case, he or she is, in effect, creating a legal rule: this is how all similar cases must be decided in the future. The sum of all of these rules, this “judge-made” law, is what we call the “common law.”

Following precedents is, in general, a good thing. One of the most important attributes of law is that it should be consistent and predictable, so that (ideally, at least) different people can be treated equally, and so that people and businesses can plan how to behave. The devil, as always, is in the details.

You see, the rule says that once a precedent is established, all similar cases must be decided the same way. If the cases aren’t similar, all bets are off. So if there’s a precedent, and I don’t want it to apply to me, all I need to do is convince the judge that my case is different from the precedent case. Lawyers call this “distinguishing” the earlier case. And that’s where the fun comes in.

A Cow and a Horse . . .

Let’s say you took somebody else’s horse. Assume that no judge has ever decided a case about horse-taking before, but there is a precedent where a person was found guilty of theft for taking somebody else’s cow. Also assume that there’s no Criminal Code actually defining what theft is, so we have to rely on the common law – on the decisions of past judges.

Your lawyer stands up in court and declares, “Your Honour, the Cow Precedent is distinguishable! It involved a cow, but my client took a horse. There is no precedent which says that taking a horse is stealing. Clearly, my client is innocent.”

I think that even non-lawyers have a pretty good idea how the judge would respond to that. “Who cares whether it’s a cow or a horse? Your client took something which was somebody else’s property. The Cow Precedent says that this constitutes stealing. Your client is guilty of theft, and also of hiring incompetent counsel.”

. . . and a Jacket

But now consider this scenario. You’re in a crowded club with a dark cloakroom. As you leave, you go to the cloakroom and grab what you think is your jacket. You get outside the club and start putting it on as you walk, wondering why it doesn’t fit quite right. Just as it dawns on you that you must have taken somebody else’s jacket by mistake, you hear, “Hey! That person’s stealing my jacket!” A police officer happens to be right on the corner and arrests you.

The prosecutor makes the same argument as in the Horse-Stealing Case: “The Cow Precedent clearly establishes that taking something that isn’t yours is stealing, and people who do it are guilty of theft. There’s no doubt the accused took the jacket. There’s no doubt the jacket belonged to somebody else. Clearly, the accused is guilty.”

Your lawyer disagrees. “Your Honour, the Cow Precedent is distinguishable! In that case, the criminal took the cow deliberately, knowing it didn’t belong to him. My client made an honest mistake in a dark cloakroom. He truly believed it was his jacket, and look: the two jackets do look quite similar. The fact that the cow thief was found guilty has nothing to do with the case before you; they’re totally different situations. What my client did is not theft.”

All of a sudden, it sounds like you have a much stronger argument – and one that would probably succeed under Canadian criminal law, where (I’m simplifying here) a “guilty mind” is a requirement of a criminal offence.

What these examples show us is that to distinguish a case, it isn’t enough to prove your case is different from the precedent. You have to prove your case is different in a way that’s legally relevant. That just leads us to the next question, though. How do we know, from reading the Cow Precedent, what’s legally relevant and what isn’t?

That’s where we’re going in Part 2.

A New Way to Introduce Gateways

Exciting news on the novel front: I received the first round of feedback from my editor on Monday, and overall it was extremely positive. I’m now starting to work on some revisions, then it will be back to him for a more detailed and technical copy edit.

I don’t want to say too much about what is already in Gateways and what is being changed. One thing I will say, though, is that I’m considering starting a few chapters with some fake “excerpts” from fake historical sources, like this one, as a way of introducing parts of the world. I just wrote this one last night, so I may still do further edits or even scrap it entirely — but at least as of now, this is the new beginning I’m thinking of using for my novel:

In the popular imagination, the Great War lives on as a spectacle. Each year, as autumn is threatening to give way to winter, hundreds converge on the Maxalo Pass in Wassia, in the south-west of the Continent, to re-enact the battle that was once fought there. The mood is festive: vendors hawk sugary drinks, horns and trumpets blow, and women and men march proudly in the brightly coloured uniforms of a bygone era. The day belongs not to the long-suffering veterans of the conflict, but to a celebration of homespun southern hospitality.

Indeed, the conflict is remembered by many as a distinctively southern war. Certainly the greater part of the fighting took place in Wassia, where massive graveyards now stand testament to the many who lost their lives in its meadows and valleys. Is it surprising, then, that it is the southern front which has persisted in the cultural memory of the Continent? That schoolchildren, filmmakers and even military historians have been drawn to its cascading offensives and desperate stands?

When, however, the war is considered from a broader historical perspective – not merely as a series of battles, but as a phenomenon that influenced the future course of a Continent – then it is the north-west, the confrontation between the Realm of Brealand and the Republic of Deugan, where our focus is inexorably drawn. It is hardly an exaggeration to claim that the Continent entered the modern era through the Gateway, that region which links the two combatants; and a study of the Brea and Deugan manoeuvrings along their shared border reveals to the historian not only a clearer portrait of the war, but also a glimpse at its more delicate and elusive cousin: peace.

(From “Introduction,” in Rothwell, Hering et. al., Perspectives on the Great War: The Northern Front (1725))

From there, of course, we would launch into the actual novel, which (at least so far) starts like this:

It was an old memory, the kind that lies concealed in the corners of the mind until it emerges in times of tension. A dirt floor, and a boy, and a night sky filled with so many stars that it almost seemed white.

Yeah … it may have looked something like this (image licensed as stock photo here) (Click image to enlarge)

stars

 

I will be back soon with some law-related posts, as well as possibly one about dance organizing. In the meantime, please comment and let me know if there’s any topic you’d like to see me write about.

Cheers,

Brian

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.