Law Times

Page 8 May 27, 2013 Law Times • Focus On Criminal Law Companies, supervisors facing added scrutiny Cases show authorities getting more aggressive about safety enforcement BY MARG. BRUINEMAN For Law Times T he conviction of and fine against a construction company in the deaths of four of its employees marked a rare application of criminal liability. But supervisors, too, are at risk of facing criminal safety-related charges. At 4:30 p.m. on Christmas Eve in 2009, six men working on the 14th floor of an apartment building packed up to leave and all got onto a swing stage. It collapsed, sending four of the workers, including the site supervisor, to their deaths. The fifth man suffered severe injuries and a sixth, who was tied off, was unharmed. Metron Construction Corp. was charged with criminal negligence causing death and its owner, Joel Swartz, faced four charges under the Occupational Health and Safety Act. "With the amendments to the Criminal Code, the risk of a corporation being found liable . . . has substantially been increased," says Jay Naster, who acted for Metron. "Liability can now be fixed . . . on the actions of a mid-level manager." The 2004 amendments through Bill C-45 mean liability is no longer restricted to the directing mind. Now a company representative can be found to be a party to the offence, something that includes a partner, employee, director, and contractor. In R. v. Metron Construction Corp., the liability resulted from the actions of the site supervisor who, with five others, got on a swing stage when only two lifelines were available. The suggestion was that proper procedures had otherwise been followed with the Christmas Eve accident being an exception. But even with a guilty plea, the case continues to attract attention. Naster argued that a $100,000 fine was appropriate. The Crown sought a fine of $1 million. And in his writ'The lesson is employers ten decision, Justice Robert in Canada can be held Bigelow decided a fine of criminally liable for $200,000 was appropriate against the company and their employees,' says $90,000 against Swartz. Antonio Di Domenico. In an appeal argued on April 23, the Crown sought to increase the fine. The court has reserved The employee hadn't received proper trainits decision. ing for it. "Metron is really the only big case we've The company pleaded guilty and received had," says Antonio Di Domenico, a partner a fine of $100,000. at Fasken Martineau DuMoulin LLP. Di Domenico notes there are many other "It's a very important decision for em- pieces of legislation that cover health and ployers. We haven't had very much case law safety, particularly in Ontario. The purpose on the point." of the criminal liability inclusion through In fact, in his decision released in July, Bill C-45 was to fill a need identified through Bigelow said he was referred to only one a royal commission following the Westray decision where a corporation had been con- mine disaster. victed since the substantial amendments to In Metron, the court found the compathe Criminal Code in 2004. ny liable because the site supervisor failed Transpavé Inc. was the first company to to take reasonable steps even though be convicted of criminal negligence causing there's no suggestion that Metron was death under the provisions of Bill C-45. The aware of any problems. charge resulted from an accident in which a "The lesson is employers in Canada piece of machinery fatally crushed a worker. can be held criminally liable for their Critics worried about NCR changes BY MARG. BRUINEMAN For Law Times A proposed high-risk accused designation for those declared not criminally responsible could put a greater demand on already-scarce judicial and medical resources as well as increase risks to the public, mental-health and legal practitioners suggest. The government introduced the not criminally responsible reform act in an attempt to respond to victims and emphasize public safety. Justice Minister Rob Nicholson's spokeswoman Julie Di Mambro says there's a need for the new law. "Our government makes no apologies when it comes to supporting victims and enhancing their role in the criminal justice system. We are all too pleased to introduce the reforms contained in the not criminally responsible reform act which will enhance their safety, ensure that they are considered in the decision-making process, allow non-communications See Relatives, page 12 employees. An employer cannot escape criminal liability by contracting out," says Di Domenico. "The objective [of the provision] was clearly obtained. I can only foresee a greater use of the provision." Adrian Miedema, a partner in the Toronto employment group at Dentons Canada LLP, has been paying close attention to the use of criminal safety-related charges. The Metron decision, he says, has had an impact on industry and employers. "The larger impact of these decisions is there's a fair amount of anxiety out there," he says. "It's on the radar of managers and supervisors." He points to a series of other cases involving criminal charges against individuals. Corporations as well as managers and supervisors have a duty to prevent bodily harm under the amendments introduced in Bill C-45. The jury trial of Karl Lilgert, the navigation officer of the Queen of the North, came to a close in May. Two passengers disappeared at sea when the B.C. ferry crashed into an island and sank. The court convicted Lilgert of criminal negligence causing their deaths. Mark Hritchuk pleaded guilty to a criminal charge of unlawfully causing bodily harm in connection to a 2007 fire at a Quebec car dealership where he was a supervisor after three workers were injured transferring gas through a faulty device. He was originally charged with criminal negligence causing bodily harm under the Bill C-45 amendments. He received an absolute discharge. As a result, criminal charges resulting from safety-related workplace accidents, says Miedema, are a going concern for industry, supervisors, and contractors.LT AVAILABLE ONLINE AND IN PRINT WIpN GACard le ift REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! ting 500 Aepyour current lisnced a Upgrad or Silver enh 13 ld 20 to a Go by June 30, in. listing hance to w for a c elow for details $ See b PLUS! Monthly draws from January to June, 2013 for a $100 Apple Gift Card just for asking how you can develop your business with an Annual Gold or Silver Enhanced Listing. Untitled-3 1 With more than 179,000 page views and 31,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com Visit www.canadianlawlist.com for full contest details. www.lawtimesnews.com 13-01-08 1:26 PM

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