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Criminal Code Westray Provisions: R. v. Metron (Part 2 of 2)

Last week, we looked at the 1992 Westray mine disaster, and the subsequent amendments to the Criminal Code regarding workplace safety.

The intent underlying the Westray provisions was to facilitate prosecuting corporate criminal negligence for workplace disasters.

One tragic case in which a conviction occurred under the Westray provisions is  R. v. Metron Construction Corporation.

The Facts

On Christmas Eve, 2009, a group of construction workers were repairing a 14th floor balcony. Late that afternoon as they completed their shift, six workers, including the site supervisor, climbed onto a swing stage to travel back down to the ground. They were about to leave the site for the day.

The swing stage’s maximum capacity was two people. There were only two lifelines, which served as fall protection.

The incident occurred when a seventh worker attempted to climb onto the swing stage. This caused it to break apart.  Five workers fell to the ground. Four died. The fifth worker improperly wore a lifeline, and survived but was seriously injured.  The sixth worker properly wore a lifeline and was left dangling in mid air, but escaped without injury.

The supervisor had directed the workers to the swing stage, even though he knew there were only two lifelines. He also permitted employees who had consumed cannabis to work on the project.

A toxicological analysis determined that at the time of the incident, three of the four deceased, including the site supervisor, “had marijuana in their system at a level consistent with having recently ingested the drug.” It is uncertain whether the employee who had properly attached himself to the safety line also had cannabis in his system.

The usual practice at the site was that only two workers would be on the swing stage at a time.

The supervisor allowed departures from the usual practice. Six workers rather than only two were permitted on the swing stage, which tripled the maximum capacity. Three times as many workers were permitted on it than there were lifelines.

Something unusual influenced the decision-making process in this case.

The Court Decisions

The Ontario Court of Justice fined Metron $200,000 plus a $30,000 victim fine surcharge.  This was three times Metron’s net earnings in its last profitable year.

The Crown had originally sought a $1 million fine. This would have bankrupt the company.

Upon appeal, the Ontario Court of Appeal increased the fine against Metron to $750,000. In doing so, it sent a strong message about the importance of worker safety.

Related Proceedings

Meanwhile, in R v. Swartz, a proceeding under provincial OH&S legislation, Mr. Joel Swartz, the president and sole director of Metron was fined $90,000 plus a $22,500 victim fine surcharge.

In another related proceeding, R. v Vadim Kazenelson, Mr. Vadim Kazenelson, Metron’s project manager, was found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. He was sentenced to 3 ½ years imprisonment. Earlier this year, the Ontario Court of Appeal denied his appeal.

It was recently announced that there will be a coroner’s inquest into this case.

A Few Take-Aways

This case illustrates how a corporation can be criminally liable not just for actions or omissions by its people at the top, but also for decisions of site supervisors.

Employers who wish to avoid liability for workplace safety issues ought to regularly review their policies and procedures and make necessary changes.

Directors and senior officers must actively foster the organization’s compliance with health and safety requirements.

Regular reporting to the board and senior officers on health and safety regulations and practices is important.

In view of OH&S requirements and the Westray provisions, there are many steps that organizations can, and should, take to minimize the risk of criminal prosecution.  Just one step, for those with workers who perform safety-sensitive activities, is to consider a drug and alcohol policy, with testing protocols.  Such policies should now reflect that the Cannabis Act is now law Canada.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances.  If you would like to reach us, we may be reached at 250-764-7710 or