ESG: Company fine increased $200-750K for criminal negligence in workers’ deaths

Fines for companies convicted of criminal negligence causing death must properly reflect a higher degree of moral blameworthiness and gravity. Liability of corporations for criminal negligence has been broadened to encompass the acts and omissions of “senior officers”. A company cannot distance itself from liability because of the rank of that officer. The prospect of corporate bankruptcy does not preclude the imposition of a fine.

So held Ontario’s Court of Appeal in its decision issued on September 4, 2013 in R. v. Metron Construction Corporation, 2013 ONCA 541 (CanLII), In so doing, the Court increased Metron’s fine from $200,000 to $750,000.

Background

In 2009, three workers and a site supervisor employed by the respondent, Metron Construction Corporation, plunged to their deaths. Together with two others, they had boarded a swing stage that collapsed as it descended from the exterior of the fourteenth floor of a high-rise construction site. It was agreed that the site supervisor had failed to take reasonable steps to prevent bodily harm and death.  The respondent was prosecuted in the Ontario Court of Justice under s. 22.1(b), s. 217.1, and s. 219 of the Criminal Code.

The respondent pleaded guilty to one count of criminal negligence causing death and was sentenced to a fine of $200,000. The Crown appealed that sentence on the grounds that it was manifestly unfit.

Decision

The Court of Appeal allowed that appeal and imposed a fine of $750,000 on the grounds that

  • The economic viability of a corporation is properly a factor to be considered but it is not determinative. Certainly it is not a condition precedent to the imposition of a fine, nor does it necessarily dictate the quantum of the fine
  • The sentencing judge erred in concluding that the imposition of a penalty that would likely result in bankruptcy, would be in violation of the statutory requirements. While bankruptcy may be considered, it is not necessarily preclusive
  • Amendments introduced by Bill C-45, An Act to amend the Criminal Code (Criminal Liability of Organizations), had broadened the scope of those whose conduct could establish liability of a corporation for criminal negligence under in s. 2 of the Code, to include a “senior officer”
  • A corporation should not be permitted to distance itself from culpability due to the corporate individual’s rank on the corporate ladder or level of management responsibility
  • The sentence, based on the Occupational Health and Safety Act regulatory jurisprudence, failed to reflect the higher degree of moral blameworthiness and gravity associated with the respondent’s criminal conviction for criminal negligence causing death and the principle of proportionality found in s. 718.1 of the Code
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