Those involved with occupational health and safety law have followed with interest the ongoing saga of Metron Construction. This sad story began with the collapse of a hanging swing stage at a western Toronto apartment building, resulting in the deaths of four workers and serious injuries to another. Various prosecutions under the Occupational Health and Safety Act and the Criminal Code have resulted in the imposition of over $1.5 million in fines and surcharges on the various corporations and individuals involved in the accident.
Another prosecution, R v Kazenelson, respecting that accident recently concluded with the conviction of the site supervisor for five criminal charges: four charges of criminal negligence causing death, and one charge of criminal negligence causing bodily harm. This is the first successful prosecution of an individual under the provisions of the Criminal Code which deal with workplace accidents.
On January 11, the Ontario Superior Court of Justice imposed a sentence of three-and-a-half years on the accused. Since the conviction of a corporation for criminal negligence under the Criminal Code cannot result in jail time, this represents the first case in which a court has imposed a term of incarceration in respect of such an offence.
On first blush, two aspects of the decision immediately stand out. First, the Court stated what principles will be applied in determining sentence on such a prosecution. Moreso than the rehabilitative potential and good character of the accused, the Court will look to craft a sentence which will denounce the conduct and deter others, rather than look towards the rehabilitation of the offender.
This means that the Court will likely tend towards harsher sentences in similar cases, even where the accused may be remorseful and have no risk to re-offend. This can be contrasted with the findings of courts in other cases of criminal negligence. For example, in one case the British Columbia Supreme Court imposed a sentence of five months’ incarceration on a hang gliding instructor found criminally negligent in the falling death of a novice glider, citing significant mitigating factors. It does not appear the Court in Kazenelson reviewed this case, nor did it engage in a similar deep analysis of the personal circumstances of the accused. In Kazenelson, the Court found that the accused was of good character but did not let that determination play significantly into its decision-making.
Secondly, the Court reaffirmed that the possible contributory negligence of the workers was not a factor that militated for a lighter sentence, and that the previous strong safety record of the accused was not a significant mitigating factor. This is concerning, as it means that a one-time lapse in judgment could lead to significant punishment for employers, regardless of the existence of any other safety programs.
On a strict reading of this decision, it appears that criminal charges may be possible against any supervisor that is aware of a significant workplace risk and does not immediately respond to it. This could signal an increase in the frequency of such charges.
The verdict and sentence in Kazenelson and the other decisions related to that incident will be explored in Stringer LLP’s upcoming complimentary webinar:
Surveying the Aftermath: Metron and the Future of Health and Safety Prosecutions
Health and safety lawyers Ryan Conlin and Frank Portman will dissect the various proceedings which have flowed from the Metron saga. Five different prosecutions, against five very different individuals and corporations, have now concluded, and have resulted in a significant ripple effect through health and safety law. Among other topics, this webinar will cover:
- The guidance the courts have given regarding health and safety prosecutions under the Criminal Code;
- The liability for suppliers and engineers involved in workplaces that suffer accidents;
- Where the Metron decisions fall in the trend towards criminalizing workplace health and safety; and
- The consequences for the prosecution and defence in serious workplace safety accidents.
Join us on a complimentary basis on Thursday, February 4th at 12:00 noon. Please register here.