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Court of Appeal for Ontario Significantly Increases Fine in Occupational Health and Safety Case

Posted On: January, 23 2015

In a decision released on September 4, 2013, the Ontario Court of Appeal granted the Crown’s appeal from the sentence imposed in R. v. Metroni against a corporate defendant charged with criminal negligence causing death.  The Court of Appeal increased the fine imposed at trial from $200,000 to $750,000.

This case stemmed from the deaths of four workers and the severe injury of a fifth worker, all of whom fell from a swing stage on Christmas Eve in 2009.

The evidence at trial showed that the swing stage was designed for two workers, and as such it had two harnesses or lifelines, meant to arrest a fall.  On the day of the accident, there were 6 workers on the swing stage, only one of whom was properly wearing a fall arrester.

The evidence at trial also showed that several of the workers had marijuana in their systems when they died.  Regarding the swing stage, the evidence showed that it had not been properly tested, assembled, or designed, and that a professional engineer had not certified that the swing stage was safe to use.

The site supervisor on the day of the accident was one of the deceased.  As he was found to be a senior officer within the corporate defendant’s organization, the company could be held criminally liable for his acts or omissions.

The company pleaded guilty at the trial stage.  Therefore only the issue of penalty was contested between the Crown and the accused company.

The Crown sought a fine of $1,000,000, arguing that several mitigating factors (the guilty plea, the absence of any prior history of occupational safety violations by the accused company, the absence of any prior criminal convictions) were outweighed by the aggravating factors.  The aggravating factors relied on by the Crown included the fact that this accident which claimed four lives was totally preventable.  Had the swing stage – which was delivered without any identifying stickers, assembly manuals, or certifications –been properly assembled and inspected by an engineer, the accident would have been avoided.  Also, had fall arresters been used for all of the workers, they would have survived the accident.  Finally, had the swing stage not been severely overloaded, the accident would likely not have occurred.

The Defence sought a fine of $100,000, arguing that a greater fine would force the company into bankruptcy, and that a fine in this range was justified because there was no pattern of repeat offences.  The Defence submitted that this was a one-off occurrence with extreme and tragic consequences.  The Defence further submitted accounting evidence showing that the accused corporation was essentially insolvent at the time of sentencing, and that a fine of $100,000 was the most that the defendant could afford to pay within a reasonable time frame.

The Trial Judge ordered a fine of $200,000, taking up the Defence’s argument about the possibility that a higher fine would drive the company to bankruptcy.  The Trial Judge also tried to look at comparable sentences in Canada, although there was only one Quebec decision dealing with a corporation charged with criminal negligence causing death. In this Quebec decision, a joint submission was made for a $100,000 fine.  The Trial Judge also looked at various sentences for violations of the regulatory Occupational Health and Safety Act (OHSA) for points of comparison. The Trial Judge also noted that the company did not gain any advantage by the acts or omissions that led to the accident, and that there was no evidence of systemic corner cutting in terms of safety.

The Court of Appeal for Ontario found that the Trial Judge made some errors in sentencing.  First, the Trial Judge gave undue weight to the possibility that a higher fine would bankrupt the company.  The principles of general deterrence may indeed require that fines be imposed that would bankrupt a corporate defendant in extreme circumstances such as existed in this case.  The Court of Appeal also found that the trial judge erred in relying on past jurisprudence for occupational health and safety fines, because this particular sentencing was being conducted under Criminal Code provisions, not under the OHSA.

Criminal prosecutions attract a higher level of moral blameworthiness, as opposed to provincial offences or regulatory prosecutions for breaches of the OHSA.

In the end, the Court of Appeal for Ontario held that a $200,000 fine was demonstrably unfit for such a serious offence.  A fine at this level would simply constitute a cost of doing business for many companies, and it did not meet the sentencing goals of general and specific deterrence.  The Court of Appeal imposed a fine of $750,000 in place of the fine ordered at the trial level.


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