R. v. Metron Construction Corp., 2013 ONCA 541

• Judge: Rosenberg, Watt and Pepall, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 23, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONCA 541;(2013), 309 O.A.C. 355 (CA)

R. v. Metron Constr. Corp. (2013), 309 O.A.C. 355 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. SE.003

Her Majesty the Queen (appellant) v. Metron Construction Corporation (respondent)

(C55883; 2013 ONCA 541)

Indexed As: R. v. Metron Construction Corp.

Ontario Court of Appeal

Rosenberg, Watt and Pepall, JJ.A.

September 4, 2013.

Summary:

Three workers and a site supervisor employed by Metron Construction Corp. were killed when a swing stage collapsed as it descended from the exterior of the fourteenth floor of a high-rise construction site. Two others survived. Metron Construction pled guilty to one count of criminal negligence causing death (Criminal Code) and was fined $200,000. The Crown appealed the sentence.

The Ontario Court of Appeal allowed the appeal and increased the fine to $750,000.

Criminal Law - Topic 269

General principles - Corporations - Sentencing - The Ontario Court of Appeal reviewed the factors to be considered when sentencing an organization, in this case a corporation (Criminal Code, s. 718.21) - See paragraphs 26 to 31, 54 to 68 and 75 to 110.

Criminal Law - Topic 269

General principles - Corporations - Sentencing - The Ontario Court of Appeal stated that "Subsection 718.21(d) [of the Criminal Code] requires the court to consider: 'the impact that this sentence would have on the economic viability of the organization and the continued employment of its employees'. Subsection 718.21(d) is but one item in a list of factors to be considered by the court when sentencing an organization. Consideration of the impact on economic viability may encompass such matters as the importance of a corporation to a community or its value as a source of supply or as an industry participant. The second element of subsection (d) makes continued employment a factor to be considered. In the case of a corporation that is a significant employer, and whose viability is seriously threatened by the imposition of a fine, the quantum of the fine may be reasonably affected. In contrast, in the case of a corporation that carries on no or limited business and has no or few employees, the impact of a fine on the corporation's economic viability may be of little consequence. If appropriate, the prospect of bankruptcy should not be precluded" - See paragraphs 102 and 103.

Criminal Law - Topic 269

General principles - Corporations - Sentencing - Metron Construction Corp. pled guilty to one count of criminal negligence causing death (Criminal Code) and was fined $200,000 - The Crown appealed, arguing that the sentencing judge erred in relying on the sentencing range developed under the Occupational Health and Safety Act (OHSA) regulatory regime - The Ontario Court of Appeal allowed the appeal - While the sentencing judge was entitled to consider the range of sentences under the OHSA, reliance on the OHSA regulatory jurisprudence and the resulting imposition of a $200,000 fine (which itself was at the lower end of the OHSA range for fatality cases), reflected a failure to appreciate the higher degree of moral blameworthiness and gravity associated with the corporation's criminal conviction for criminal negligence causing death and the principle of proportionality (Criminal Code, s. 718.1) - That was in error - Further, a corporation should not be permitted to distance itself from culpability due to the corporate individual's rank on the corporate ladder or level of management responsibility - See paragraphs 68 to 90.

Criminal Law - Topic 269

General principles - Corporations - Sentencing - Metron Construction Corp. pled guilty to one count of criminal negligence causing death (Criminal Code) and was fined $200,000 - The Crown appealed, arguing that in determining an appropriate fine, the sentencing judge misapplied ss. 734(2) and 718.21(d) of the Code, and restricted his determination of an appropriate fine based on the corporation's ability to pay - The Crown submitted further that the sentencing judge also erred in concluding that a fine that might bankrupt the corporation was not an available option - The Ontario Court of Appeal allowed the appeal, holding that the sentencing judge placed undue weight on the corporation's ability to pay - The court held that an organization's ability to pay should not be treated as a prerequisite to the imposition of a fine - The sentencing judge was not precluded from imposing a fine that might result in the corporation's bankruptcy - The economic viability of a corporation was a factor to be considered on sentencing, but it was not determinative - See paragraphs 91 to 111.

Criminal Law - Topic 269

General principles - Corporations - Sentencing - Three workers and a site supervisor employed by Metron Construction Corp. were killed when a swing stage collapsed as it descended from the exterior of the fourteenth floor of a high-rise construction site - Two others survived - The swing stage was faulty, was overloaded, there were only two life lines and three of the four deceased had recently used marijuana - Metron Construction pled guilty to one count of criminal negligence causing death and was fined $200,000 - The Crown appealed, arguing that the sentence was manifestly unfit - The Ontario Court of Appeal allowed the appeal - The sentence was manifestly unfit - Denunciation and deterrence should have received greater emphasis - The court increased the fine to $750,000 - See paragraphs 111 to 121.

Criminal Law - Topic 5629

Punishments (sentence) - Fines, penalties and compensation orders - Considerations on imposing fine (incl. ability to pay) - [See all Criminal Law - Topic 269 ].

Criminal Law - Topic 5809.5

Sentencing - General - Corporations - [See all Criminal Law - Topic 269 ].

Criminal Law - Topic 5863.1

Sentence - Criminal negligence causing death - [See third, fourth and fifth Criminal Law - Topic 269 ].

Cases Noticed:

R. v. Canadian Dredge & Dock Co. et al., [1985] 1 S.C.R. 662; 59 N.R. 241; 9 O.A.C. 321, refd to. [para. 58].

R. v. Transpavé Inc., 2008 J.Q. No. 1857 (Cour du Québec), refd to. [para. 65].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 69].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 94 D.L.R.(4th) 161, refd to. [para. 75].

R. v. Cotton Felts Ltd. (1983), 2 C.C.C.(3d) 287, refd to. [para. 78].

R. v. J.L. (2006), 206 O.A.C. 205; 2004 C.C.C.(3d) 324 (C.A.), refd to. [para. 79].

R. v. J.F., [2008] 3 S.C.R. 215; 380 N.R. 325; 242 O.A.C. 338; 2008 SCC 60, refd to. [para. 79].

R. v. M.R. (2011), 277 O.A.C. 99; 275 C.C.C.(3d) 45; 2011 ONCA 190, refd to. [para. 61].

R. v. Topp (J.P.), [2011] 3 S.C.R. 119; 421 N.R. 95; 283 O.A.C. 1; 2011 SCC 43, refd to. [para. 99].

R. v. Cotswold Geotechnical (Holdings) Ltd., [2011] EWCA Crim 1337 (U.K.C.A.), affing. 2011 W.L. 2649504, refd to. [para. 105].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 22.1(b), sect. 217.1, sect. 219 [para. 26]; sect. 718.21 [para. 30]; sect. 718.21(d) [para. 100]; sect. 734(1), sect. 734(2) [para. 93]; sect. 735(1) [para. 97].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, vol. 133, 1st Sess., 35th Parliament (September 20, 1994), p. 582 [para. 99, footnote 1].

Canada, Minister of Justice, Government Response to the Fifteenth Report of the Standing Committee on Justice and Human Rights, Sessional Paper No. 8512-372-178 (2002), generally [para. 81].

Gobert, James, Corporate Criminality: Four Models of Fault (1994), 14 Legal Studies 393, p. 395, 396 [para. 59].

Hansard - see Canada, Hansard, House of Commons Debates.

MacPherson, Darcy L., Extending Corporate Criminal Liability?: Some Thoughts on Bill C-45 (2004), 30 Man. L.J. 253, pp. 253, 254 [para. 61].

Nova Scotia Public Inquiry, Commissioner Richard, The Westray Story: a Predictable Path to Disaster (1997), pp. vii-ix [para. 54].

United Kingdom, Sentencing Guidelines Council, Corporate Manslaughter & Health and Safety Offences Causing Death, Definitive Guideline (2010), s. 24 [para. 82].

Counsel:

Joan Barrett and Avene Derwa, for the appellant;

Jay Naster, for the respondent.

This appeal was heard on April 23, 2013, before Rosenberg, Watt and Pepall, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Pepall, J.A., on September 4, 2013.