Metron/Swartz Sentencing Decisions now Online: Company Criminally Liable for Site Supervisor’s Actions

by Dentons
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On July 13, 2012, the Ontario Court of Justice made its historic sentencing decisions against Metron Construction Corporation and its owner, Joel Swartz. The court’s reasons for decision – one for each of Metron and Mr. Swartz – are now online (see links below). The charges and fines resulted from the deaths of four workers on Christmas Eve, 2009, when a swing stage (a suspended work platform) collapsed and they fell 14 floors. The case has garnered much media attention and has generated discussion about when criminal safety charges are appropriate against employers and their managers or executives.

Metron Liable for Acts of its Site Supervisor

The decisions reveal that Metron’s Criminal Code liability resulted from the actions of its site supervisor, who Metron admitted was a “senior officer” of Metron, so that his actions were taken to be the actions of Metron for the purposes of Metron’s Criminal Code liability. The site supervisor had directed and/or permitted six workers to work on the swing stage when he knew or should have known that it was unsafe to do so; directed and/or permitted the six workers to board the swing stage knowing that only two lifelines were available; and permitted persons under the influence of drugs to work on the project.

There is no suggestion in the court’s decisions that Mr. Swartz, Metron’s owner and sole director, was aware of the site supervisor’s actions that led to the accident.

Metron Construction pleaded guilty to one charge of criminal negligence under the Criminal Code and was fined $200,000.00 plus a 15% Victim Fine Surcharge. Mr. Swartz pleaded guilty to four charges under the Ontario Occupational Health and Safety Act and was fined a total of $90,000.00 plus a 25% Victim Fine Surcharge.

The court’s decisions reveal that the Crown had asked for a $1,000,000.00 fine against Metron Construction, and Metron Construction argued for a $100,000.00 fine. In the charges against Mr. Swartz, the parties had agreed upon the fine of $90,000.00.

Facts Against Metron

The court noted that:

-only two lifelines were available on the swing stage for the 6 workers

- toxicological analysis showed that Metron’s site supervisor, and 2 of the 3 other workers who died, “had marijuana in their system at a level consistent with having recently ingested the drug”

-the Crown had not established beyond a reasonable doubt any attempt by Metron to hide or convert assets in order to avoid or reduce any fine which might be imposed

-the swing stage did not have any markings, serial numbers, identifiers or labels with regard to the stage’s maximum practice (as required by health and safety legislation and industry practice)

-Metron was neither large nor profitable

-in Metron’s most recent two fiscal years, it had lost money. The court stated that the $1,000,000 fine suggested by the Crown would likely bankrupt the company

Metron’s “prior good character” was also noted.

The court ultimately decided that a $200,000.00 fine against Metron, which was over three times the net profit of Metron in its last profitable year, was appropriate and should send a clear message to all businesses of the overwhelming importance of ensuring the safety of workers whom they employ.

Personal Fine for Mr. Swartz, as a Director

With respect to the Occupational Health and Safety Act charges against Mr. Swartz in his capacity as a director of Metron, he acknowledged that although Metron provided safety training to the workers on the project in question, he had failed as a director of Metron to ensure that non-English speaking workers received written material in their native languages and failed to ensure that training records were maintained; failed to ensure that the swing stage was not defective or hazardous (by allowing it to be used without having received any of the required information with respect to its capacity and use); and failed to ensure that the swing stage was not loaded in excess of the load that the platform was designed and constructed to bear.

The court noted that Mr. Swartz was 53 years old, married with 4 children whom he supports. He had no prior record of health and safety violations or criminal offences, after 20 years in the construction industry. His net income had dropped by 50% largely as a result of this accident. The court decided that the agreed-upon fine of $90,000.00 under the Occupational Health and Safety Act, plus the 25% Victim Fine Surcharge, was appropriate.

Lessons for Employers

One main lesson from this case is that companies can be criminally liable for actions of supervisors – not only actions of senior executives. Metron’s site supervisor, who tragically died along with 3 other workers, had committed serious safety breaches on the day of the accident, but there is no evidence in the decisions that the company was aware of those breaches. As a result, employers – particularly those in safety-sensitive industries such as construction – should redouble their efforts to ensure that all supervisors are fully aware of their safety obligations and adhere to those obligations throughout the work day. The Metron case, as well as previous “Bill C-45″ criminal safety cases, show a criminal conviction is perhaps most likely where the company, through a supervisor or executive, is aware of a hazard and does not immediately remedy it. As a result, hazard identification training, and hazard remediation process training, are critical.

R. v. Metron Construction Corporation, 2012 ONCJ 506 (CanLII)

R. v. Swartz, 2012 ONCJ 505 (CanLII)

 

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