The Crown has decided to seek permission (referred to as “leave”) to appeal the $200,000 fine imposed against Metron Construction following a guilty plea to a criminal charge of negligence causing death in connection with a tragic accident on Christmas Eve 2009. It is very likely in our view that the Ontario Court of Appeal will grant permission for the case to be heard.
The accident occurred when a group of six workers were repairing the balcony at a Toronto apartment using a suspended scaffold. The accident happened when a seventh worker attempted to step onto the suspended scaffold, causing it to come apart which tragically resulted in four workers falling to their deaths and another becoming seriously injured. The accident was widely covered in the mainstream media and directly resulted in the appointment of the Tony Dean panel to review the Ontario Occupational Health and Safety Act (“OHSA”).
At trial, the Crown had sought a fine of $1,000,000 but the Court surprised many observers and imposed a fine of $200,000. Representatives of organized labour have criticized the Court’s decision. Ken Neumann, National Director of the United Steelworkers stated in a press release that “…the decision highlights the continued need for the justice community to be better educated on the Westray Act.” Ontario Federation of Labour President Sid Ryan stated in a press release that the ruling was ‘disgraceful’ and that “… many bad bosses across the province will simply chalk it up as the cost of doing business.”
The Court placed great weight on the ability of Metron to pay the fine and rejected a line of earlier cases which had held that ability of an inactive corporation to pay a fine was not a relevant factor. The Court held that imposing a fine in the range sought by the Crown would likely bankrupt Metron. The possibility of bankrupting Metron was the key factor in the Court’s decision to impose a lower fine. The Crown drew the Court’s attention to some higher fines imposed under the OHSA, but the Court indicated that those fines were not relevant as they were imposed against large and profitable corporations.
The Crown is appealing the amount of the fine to the Ontario Court of Appeal and has argued in Court papers that the fine is “manifestly unfit”. The Crown has taken the position that the sentencing judge failed to take into account the “high level of culpability” associated with a criminal conviction. In other words, the Crown is saying that the Court should have taken into account that criminal convictions require a significantly higher level of negligence than a conviction under the OHSA. The Crown is taking the position that corporations convicted under the Criminal Code should receive a considerably higher fine than would be imposed against corporation for a fatality under the OHSA.
The decision to seek leave to appeal has been welcomed by union leaders. An appeal court will only vary the amount of a fine where it identifies a significant legal error. However, the issues arising out of this appeal are legally novel and represent the first time that an appellate court will consider Bill C-45. There is a very real possibility that this appeal will be successful.
The decision of the Court of Appeal on the “ability to pay issue” will be critically important for sentencing under the Criminal Code and the OHSA. It has been our experience that courts do not place great weight on the financial circumstances of a defendant in sentencing under the OHSA. General deterrence is often considered the most important sentencing factor which can sometimes result in high fines against relatively small companies.
If the Court of Appeal accepts the reasoning in the Metron case on the ability to pay issue, it opens the door for companies convicted under the OHSA to seek greater consideration of their specific financial circumstances. Alternatively, if the Crown’s appeal is successful it may open the door to courts imposing fines under the Criminal Code, regardless whether they may force companies to shut down.