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Criminal Liability and the Metron Case
The Metron Case & Criminal LiabilityWhat does it mean to your company?
What actually happened? What was done wrong? On what counts could the prosecution prove criminal negligence? What consequences arose out of this case? What does the Metron Case mean to your company?
Involves workers on a balcony restoration project in Toronto on December 24, 2009 5 workers + supervisor climbed onto a swing stage, which almost immediately collapsed 5 out of 6 men fell 14 floors to the ground ◦ 4 of the 5 workers died as a result of injuries from the fall ◦ The 5th worker survived but suffered serious injuries The 6th worker was uninjured
The swing stage that collapsed ◦ Appeared new ◦ Had no markings, serial numbers, identifiers, or labels regarding the stage’s maximum capacity ◦ Arrived without any manual, instructions, or other product information (e.g., design *OHSA requires that all equipment arrive with drawings prepared by an manuals and other necessary materials, as engineer)* specified by s.139(5)
The swing stage hadn’t been properly constructed ◦ It wouldn’t have been safe for even 2 workers ◦ Only 2 lifelines were available for the swing stage It was “the normal and usual practice on the project for only two workers to be on the swing stage at any time.” Only 1 of the 6 workers had used the lifelines – he didn’t fall.
3 of the 4 deceased workers (including the supervisor) had marijuana in their systems ◦ The levels of marijuana were consistent with having recently ingested the drug
Metron’s supervisor failed to take reasonable steps to prevent bodily harm and death 1. He directed and/or permitted 6 workers to work on the swing stage (along with various construction materials) He knew or should have known that it was unsafe to do so 2. He directed and/or permitted 6 workers to board the swing stage knowing that only 2 lifelines were available (and he permitted that only 1 of those lifelines was actually used) 3. He permitted persons under the influence of drugs to work on the project
The individual was a supervisorwith associated work directing-based job duties
(As seen on the previous slide)The supervisor actedwrongfully on several accounts
The supervisor had alsoingested marijuana and hepermitted 6 workers onto aswing stage that was built for 2
4 out of 6 workers died and 1worker was severely injured
Metron Construction is arecognized company,therefore, it is considered an“organization”
The people injured were allemployed by MetronConstruction and they werecompleting a work-related project
The supervisor was authorized tobe working at the high-riseapartment complex, and allworkers were taking his direction
The supervisor had ingestedmarijuana and he permitted 6workers to be on the swing stageat once without proper safetyrestraints
The supervisor should have• …Normally known to and made use of the proper safety lifelines;• …Allowed the proper number of people on the swing stage; and• …Not been ingesting an illegal substance
The Crown sought a $1,000,000 fine against Metron Metron pleaded guilty, but asked for a fine of $100,000 ◦ Real cause for accident was faulty construction of the swing stage ◦ Prior, the corporation had “good character” ◦ $1M would send Metron into bankruptcy and never pay fine The Court decided upon $200,000 ◦ Acknowledged likelihood of bankruptcy if Metron was to pay $1M fine ◦ Metron had no previous criminal record ◦ Agreed with the Crown that $100K didn’t properly fit the crime
Joel Swartz, the owner of Metron, pleaded guilty under the OSHA, as he… ◦ Failed to ensure written instructions in workers’ own languages ◦ Failed to ensure proper training ◦ Failed to ensure the swing ► Swartz was fined $22,500 stage was not defective + 25% victim surcharge, ◦ Failed to ensure the swing per victim stage was not overloaded ► Total fine = $112,500
Criminal Code & the Metron CaseC-45 and Criminal LiabilityWhat does the Metron Casemean for your business?
Metron Construction was prosecuted on OH&S Criminal charges ◦ These are different from OHSA violations ◦ These charges come from C-45 The Metron case is considered the highest profile OH&S Criminal prosecution to date
Canadian Criminal Code amendment ◦ National in scope ◦ Took effect on 3/31/2004 New section of the Criminal Code (Section 217.1) ◦ “Everyone who undertakes, or has the authority, to direct how another person does work or performs a task” must take “reasonable steps” to protect the person who does the work or another person against bodily injury arising out of the work. “Reasonable steps” ◦ Decided one case at a time by the courts ◦ Compliance with local OHSA laws (at minimum) ◦ Industry standards, best practices, etc.
Criminal Liability can result from: ◦ Failure to follow OHS laws ◦ Failure to ensure workplace health and safety Conviction results in… ◦ High fine (maximum $100,000) ◦ Jail ◦ If someone is killed, no maximum on the amount of fine or time of jail sentence Criminal negligence is only proven from a show of total disregard or indifference to workplace health and safety
Companies are liable under C-45 for convictions against: ◦ Their employees ◦ Their contractors ◦ Other agents not on company’s payroll Liability isn’t based on a person’s title (e.g., “employer,” “supervisor,” or “contractor”) ◦ Based on whether the person directs or has authority to direct how the work is done
Who directs or has authority to direct how the work is done? They… ◦ Have control over who can do a job; ◦ Have control over what tools or methods are used; ◦ Train the people who actually perform the job; and/or ◦ Have authority to stop work because it’s unsafe. Note: A person, like a worker, who just decides to direct work even if he doesn’t have the authority to do so is liable under C-45
Show due diligence: ◦ Have an effective OHS program in place ◦ Prove that you protected workers ◦ Prove compliance with OHS laws By showing due diligence, you can make it impossible for the prosecutor to convict you of criminal negligence under C-45 ◦ Save your reputation, time, and money ◦ Most Importantly: Keep your workers safe! Know the laws (both OHS and Criminal Code)
This Court decision set a precedent for fines against senior officers under OHSA ◦ Maximum fine is $25,000 per C-45 charge ◦ Additionally, 25% victim surcharge fees “Senior Officer” is a broad term ◦ Has come to include front-line supervisors (e.g., Metron) The Crown didn’t insist upon incarceration ◦ I.e., jail sentences were and will continue to be rare under OHSA Fines charged to the guilty party will be determined with consideration upon the party’s financial situation
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