UPDATE: Large Fines Imposed In Metron Construction OHS Criminal Negligence Case. Reasons For Judgment Released

Author:Mr Norm Keith and Anna Abbott
Profession:Gowling Lafleur Henderson LLP
 
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On Friday, July 13, 2012, fines were imposed on Metron Construction and its President, Joel Swartz following guilty pleas by both parties earlier in June.  Both parties have one year to pay the $342,500 in total fines and surcharges.

Party

Guilty Plea

Fine imposed

Metron Construction

Guilty of 1 count of criminal negligence causing death

$200,000 + 25% vfs

Joel Swartz

Guilty of 4 counts under the OHSA

$90,000 + 25% vfs

Metron Construction entered a guilty plea to one charge of criminal negligence causing death under the Criminal Code as amended by Bill C-45. At the same time, its President, Mr. Joel Swartz, P.Eng.  pleaded guilty to four contraventions of the Ontario regulatory statute,  Occupational Health and Safety Act (OHSA).  The criminal and regulatory charges relate to the Christmas eve tragic death of 4 workers when a scaffold broke and workers fell since they were not using a fall protection.

Fine against Joel Swartz

The President of Metron, Joel Swartz, was fined $90,000 total for his guilty plea to four counts under the OHSA.  In order to arrive at this amount, the court accepted the joint submission by the Prosecution and the Defence for a fine of $22,500 per charge. This $90,000 fine against Metron's President sets a new high water mark for a sentence against any individual, let alone a director and officer under an OHS statute in Canada.

Mr. Swartz's charges related to a failure to ensure that:

all workers were provided with instructions about fall arrest in their native language fall arrest training and instruction records were kept the swing stage being used was not defective or hazardous the swing stage in use was not overloaded In accepting the joint submission on penalty, Justice Bigelow considered the following factors:

Mr. Swartz is married and supports his 4 children His income dropped by 50% between 2010 and 2011 as a result of this matter He has no previous violations for health and safety matters As a result of the fines being well over Mr. Swartz's total income, he was given 6 months to pay half of the fine, and another 6 months to pay the second half.

Fine against Metron

In addition to the fine against Mr. Swartz personally, Metron Construction was fined $200,000 for its guilty plea to one count of criminal negligence causing death.  Under the Criminal Code there is no maximum fine that may be imposed upon a convicted organization.  The Criminal Crown has sought a penalty of $1 million; the defence...

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