Law Times

Law Times • November 11, 2013 Page 13 FOCUS Two cases show Crown's aggressiveness on safety act fines BY MICHAEL McKIERNAN For Law Times T wo eye-catchingly large workplace safety fines highlight the Crown's willingness to push for higher penalties for employers that breach their occupational health and safety duties, according to a Toronto employment lawyer. In September, the Court of Appeal for Ontario nearly quadrupled — raising it to $750,000 from $200,000 — the fine meted out to Metron Construction Corp. after it pleaded guilty to criminal negligence in the deaths of four workers who fell from a scaffold platform. And the same month, mining giant Vale Canada Ltd. received a record-breaking fine of $1.05 million under the Occupational Health and Safety Act after agreeing to a plea bargain with Ministry of Labour prosecutors over the deaths of two workers at the Stobie mine in Sudbury, Ont., following an uncontrolled release of broken rock and ore. After including the 25-per-cent victim fine surcharge, Vale's total exposure was $1.3 million. Adrian Miedema, a partner in the employment group at the Toronto office of Dentons Canada LLP, says he has noticed prosecutors from Ontario's Ministry of Labour taking a consistently hard line on fine levels even when companies admit their guilt. "Most people enter into negotiations with the intent of reducing their fines, but we've found the opposite may be the case when you negotiate with the Ministry of Labour," he says. In a paper published last year with a Dentons colleague, Miedema crunched the numbers from more than 800 prosecutions under the act between January 2009 and June 2010 and found that the average fine for corporations that pleaded guilty and accepted the ministry's proposed fine paid an average of $43,000. That was significantly higher than those who pleaded guilty but left the value of the fine up to the court. In addition, the report found corporations that contested the charges all the way through the court were barely worse off by the end of the process than those that pleaded guilty and negotiated the fine with the ministry prosecutors. The companies convicted after a trial paid an average of $45,000 compared with the $43,000 paid by those that pleaded guilty. As a result, Miedema encourages some clients to be less risk averse when negotiating a fine, especially when the charges are less serious. "I would say my experience has been that when clients have a good safety record, plead guilty, and throw themselves at the mercy of the court, they do much better than if they negotiate a plea bargain. The judge or JP tends to be much more merciful than the Ministry of Labour," he says. At the opposite end of the seriousness spectrum, he says the ministry's hard line may also have played a part in Vale's record fine since local news reports suggest the proposal to fine the company $350,000 for each of the three counts was a joint one by defence and Crown counsel. The two Vale workers died in June 2011 when transferring muck through a transfer gate. A protected area offered no view of the movement of the muck, so the workers stepped out in front of the transfer gate. A sudden release of the muck then buried one worker and struck the other. The release was due to a wet muck hang-up that in turn resulted from Vale's failure to deal with water issues in the mine. Miedema says Vale's size, ability to pay, and safety record would have played into the amount of the fine. The courts had convicted the company and its predecessors of violations of the act 11 times over the last 12 years. Natalie MacDonald, a co-founder of employment boutique Rudner MacDonald LLP and author of Extraordinary Damages in Canadian Employment Law, says both the Vale and Metron cases send a message to employers across the country. "In setting these kinds of fines, the courts are really trying to provide a deterrent to employers who may breach their duties under the OHSA," she says. "It illustrates that the courts will take it very seriously when they find a workplace was not equipped to be able to adhere to basic safety requirements." Kathleen Chevalier, an employment lawyer with Stikeman Elliott LLP's Toronto office, says the appeal court decision in R. v. Metron Construction Corp. was particularly notable for its statement that "if appropriate, the prospect of bankruptcy should not be precluded" when imposing fines for criminal negligence causing death. "It's one factor to be considered but it's not determinative. . . . In this case, denunciation and deterrence mattered more than the ability to pay," says Chevalier. "The court worried that if they didn't take worker safety seriously enough, some might perceive a fine as the cost of doing business." The Metron workers died when five employees and their supervisor boarded a swing stage meant for two to travel between the 14th floor and the ground level. Four of the workers died when the swing stage collapsed. A post-mortem toxicology report found three of the four dead workers, including the supervisor, had recently ingested marijuana. At trial, Metron pleaded guilty and the Ontario Court judge set the fine at $200,000 plus a $30,000 victim fine surcharge. He ruled out the Crown's submission for a $1-million fine, finding that amount could bankrupt the company and therefore wasn't an available option. Writing for a unanimous three-judge panel, Ontario Court of Appeal Justice Sarah Pepall concluded the original amount was "manifestly unfit" and said the judge's reliance on previous sentences under the act in setting the fines failed to recognize the "higher degree of moral blameworthiness and gravity associated with" a criminal conviction. LT Let us open wins last, wins" Earl Cherniak, Q.C. Appellate Advocacy Group, Lerners LLP The appeals process demands detailed and discriminating analysis of the existing record. It rewards the insight to identify and articulate a strategy upon which a case will turn. It favours those with an intimate understanding of the procedures and perspectives that define our appeal courts and Supreme Court. It is an unforgiving environment for those who approach unprepared. Whether you won at trial and face an appeal or lost at trial and wish to launch an appeal, we can help you determine the final outcome for your client. the right door for you Call us. We specialize in Employment and Labour Law in Canada Toronto: 416 867 3076 Earl Cherniak, Q.C., Kirk Boggs, Mark Freiman, Toronto: 416 867 3076 Kirk Stevens, Jasmine Akbarali, Brian Radnoff, Earl Cherniak, Q.C., Kirk Boggs, Mark Freiman, Cynthia Kuehl Kirk Stevens, Jasmine Akbarali, Brian Radnoff, London: 519 672 4510 Cynthia Kuehl Peter Kryworuk, Andrew Murray, Carolyn Brandow London: 519 672 4510 Peter Kryworuk, Ian Leach, Andrew Murray, proud Carolyn Brandow Lerners LLP is 100-plus lawyers with a proud on. history of 80 years of successful litigation. Lerners LLP is 100-plus lawyers with a proud www.lerners.ca/appeals history of 80 years of successful litigation. www.lerners.ca/appeals Kuretzky Vassos Henderson is a leading employment and labour law firm situated in the heart of Toronto. We are comprised of ten lawyers, all of whom specialize in the area of employment and labour law. We act for many prominent public and private sector employers as well as for individuals. Kuretzky Vassos Henderson LLP Our work includes extensive experience in the areas of: Wrongful dismissal • Human rights • Labour relations/Labour law/Collective barganing • Workplace health and safety • Sexual harassment • Employment standards • Employment contracts • Canada Labour Code • Class actions • Mediation/arbitration/ADR www.kuretzkyvassos.com • 416.865.0504 Untitled-1 1 " He who " He www.lawtimesnews.com8:27 AM 13-09-04 ntitled-3 1 13-11-04 4:17 PM

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