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On Christmas Eve, 2009, four workers died and a fifth was
seriously injured when the scaffold they were standing on to effect
repairs to the exterior of an apartment building in Etobicoke,
Ontario collapsed and fell thirteen stories to the ground
below. The accident resulted in rare charges of criminal
negligence causing death against the construction company, Metron
Construction, and its owner and President, Joel Swartz. None
of the four workers killed – including supervisor
Fayzullo Fasilov – were wearing lifelines at the time of
the accident. The fifth worker survived because he was
wearing a lifeline, although it malfunctioned at the time of the
accident. A sixth worker escaped unharmed due to a
functioning lifeline.
Recently, Metron Construction became the first Ontario
company in history to plead guilty to charges of criminal
negligence causing death. The Toronto Star was apparently in the
courtroom at the time and reported on the contents of the agreed
statement of facts – a document prepared jointly by
prosecutors and defence lawyers that is read into court during a
guilty plea. The Star quoted the document as stating that
Metron Construction's guilty plea was a direct result of the
acts and omissions of its supervisory employee, Mr. Fasilov, whose
role within the organization was of sufficient authority to render
Metron Construction legally responsible for his acts and
omissions. The Star reported that the agreed statement of
facts went on to state that Mr. Fasilov failed to take reasonable
steps to prevent harm and death by directing or permitting workers
to work on a scaffold when he knew or should have known it was
unsafe and that he directed the workers to complete the work
knowing that only two lifelines were available. The Star also
said that a section of the agreed statement of facts indicated that
Mr. Fasilov had permitted employees to work while under the
influence of drugs, as a toxicology analysis had confirmed that
three of the four workers killed, including Mr. Fasilov, had
marijuana in their systems from recent ingestion.
Prosecutors and lawyers for Metron Construction are continuing
to make submissions to the court on the appropriate fine to be
levied against Metron Construction. Prosecutors are
reportedly seeking $1,000,000.00.
The Star also reported that prosecutors have dropped the charges
of criminal negligence causing death against Mr. Swartz on the
basis that they believed there was no reasonable chance of
conviction, but that Mr. Swartz has pleaded guilty to four offences
under the Occupational Health and Safety Act including:
failing to take reasonable care to ensure a worker using a
fall protection system received adequate training, failing to keep
proper training records, failing to take reasonable care to ensure
a suspended scaffold was properly maintained to protect a
worker's safety and failing to comply with all aspects of
construction regulations. The Star indicated that
prosecutors and defence lawyers have agreed to fines of $22,500.00
for each count, but that this joint submission on fines remains to
be approved by the court.
The publicity around this case may generate renewed interest,
from both the public and criminal prosecutors, in criminal safety
prosecutions against Ontario employers. Although the facts of
the Metron Construction case are extreme, one thing is clear from
this and other Bill C-45 criminal safety cases: charges are most
likely where death or serious injury results from a hazard that was
known to the employer or a supervisor but was not addressed.
We will keep you updated as more information unfolds about this
case.
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