In our fall 2012 HSE newsletter, David G. Myrol reported on a criminal case from Ontario in which a corporation was made vicariously liable for the behaviour of a field level manager.1 That case, R v. Metron Construction Company, was a decision of the Ontario Court of Justice. The Metron decision was taken to appeal, and the Ontario Court of Appeal has released its decision in which the Court upheld the Crown's appeal of the sentence, and more than tripled the fine imposed on Metron.
The facts of the Metron case involve the tragic deaths of four workers who fell 14 floors to the ground after a swing stage collapsed on Christmas Eve, 2009. In 2012 the company entered a guilty plea to criminal negligence causing death and was sentenced to a $200,000 fine, despite the fact that the Crown had sought a $1 million fine.
As our prior article noted, Metron is potentially a very important case in Canadian law because of its detailed consideration of the concept of a "senior officer" as that term is defined in the Criminal Code. The implications of Metron are that mid-level managers or field supervisors apparently can be considered "senior officers" of the company. However, the issues on the appeal were narrower. The appeal was brought by the Crown, who argued that the sentence of $200,000 as against the company was "manifestly unfit in the circumstances". The Crown had two primary bases for appeal of the sentencing decision of the lower court:
- The Crown submitted that the sentencing judge had inappropriately used the range of sentences developed under provincial health and safety legislation to determine the sentence.
- The Crown argued that the sentencing judge inappropriately took into account the ability of Metron to pay the fine, and in particular, the risk of driving the company into bankruptcy.
In reviewing the Crown's first ground of appeal, the Court of Appeal noted that it was not inappropriate for the sentencing judge to have regard to provincial health and safety sentences. The Court of Appeal also noted that the Crown itself had submitted occupational health and safety sentences to the sentencing judge for consideration. However, while acknowledging that, the Court of Appeal agreed with the Crown that criminal culpability is far more serious than regulatory culpability, and that the imposition of a fine of $200,000 (which the Court of Appeal found was at the lower end of the range even for provincial health and safety penalties involving fatalities) simply didn't properly reflect the serious nature of the conviction for criminal negligence.
The Court of Appeal also accepted the Crown's argument that the sentencing judge had been overly concerned with the risk of a fine driving the company into bankruptcy. The Court of Appeal did accept that it was reasonable for a sentencing judge to have regard to the ability of the convicted corporation to pay, but that should not be determinative.
In view of those errors, and also in view of the gravity of the offence, the Court of Appeal agreed with the Crown that a sentence of $200,000 was manifestly unfit as it failed to "deliver a message on the importance of worker safety". The Court of Appeal expressed concern that a fine of this nature might be treated simply as the "cost of doing business". Accordingly, the Court upheld the appeal of the $200,000 sentence by the Crown and imposed instead a fine of $750,000.
This decision only emphasizes and reinforces the concerns that we raised in our fall 2012 article discussing the trial decision. It highlights again the financial risk to companies for the potentially criminal actions of its supervisors. We continue to be of the view that the critical point for any organization is to have an effective health and safety management system; one that has been properly designed by competent people. However, as we noted, no system can possibly amount to a due diligence defence, no matter how well designed, if the individuals who implement it do not do so competently.
In order to do so, the individuals implementing the system will have to have industry and regulatory knowledge. Further, where a company can demonstrate proper training, monitoring and supervision of their field level supervisory staff, and the competence of those staff, then the company may be able to construct a due diligence defence to any charges that may arise should an incident occur.
Ensuring that employees with regulatory competence are in the right positions may go a long way towards both preventing an incident, and providing a defence to charges where an incident occurs and the conduct of those employees may amount to criminal behaviour. In any given case, whether or not such a defence will be successful will depend on the specific circumstances and facts of that case, but the company will at least have taken steps towards managing and mitigating its risk.
Footnote
1 Vicarious Liability for Pot Smoking Foremen: When Do Their Criminal Actions Become the Company's? by David G. Myrol, McLennan Ross fall 2012 HSE Newsletter: http://www.mross.com/law/digitalAssets/10/10429_Criminal_Liability_DMyrol.pdf
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