October 28, 2013

The Ontario Court of Appeal released its decision in the Metron case and increased a criminal conviction fine of $200,000 to $750,000 on the basis of the importance of workplace safety.  On September 17, 2013, touted by the media as the “highest ever total fine levied by a court in Ontario” for contraventions of the Occupational Health and Safety Act, Vale Canada Limited agreed to pay a fine of $1,050,000.00 after two workers were fatally injured.  Together, these cases represent a strong message that criminal negligence in the workplace will be punished.

In the Metron case, four workers fell to their death and one was severely injured when they loaded on to a swing stage after consuming alcohol and failed to take up safety harnesses.  The swing stage allowed for four individuals and they had six.  Metron pleaded guilty to criminal negligence causing death under the Criminal Code due to the four fatalities and was given a fine of $200,000.00.  Deeming this fine to be “manifestly unfit”, the Ontario Court of Appeal found that the company’s negligence involved such morally blameworthy conduct, that the fine had to be increased significantly.

In the Vale case, on the eve of June 8, 2011, two workers were working at an overpass on the 3000 ft. level of Stoby Mine.  They were in the process of transferring muck from above the 3000 ft. level to below that level through a transfer gate.  Workers were operating the gate using a remote control.  Although there was a protected area for workers at that location, in order to view the movement of muck, and use the remote pendant, the two workers had to position themselves such that they were in front of the transfer gate.  There was a sudden release of muck, sand and water, burying one worker and hitting the other.  Both died from a massive crop of injuries, including multiple blunt force trauma as a result.

The Ministry of Labour investigation found that there had been a hang up of wet muck in the overpass and that this was a result of Vale not dealing with water issues in the mine to ensure a safe workplace.

Vale pleaded guilty to three counts of failing to prevent the movement of materials through an overpass while hazardous conditions existed; failing to maintain the drain holes at the 2400 ft. level of the Stoby Mine, leading to the accumulation of water creating wet muck which then hung up; and failing to ensure that water, slime and other wet material was not dumped into the overpass at the 2600 ft. level of the mine.  In addition to the fine imposed by the court, there was also a 25% victim fine surcharge as required under the Provincial Offences Act.

With the Bill C-45 amendments to the Criminal Code, these cases taken together illustrate the seriousness with which courts view criminal negligence in the workplace.  Employers must ensure that they have occupational health and safety policies, that such policies are continually reviewed and enforced, that the employees are trained properly, and that managers are well appraised of their duties to supervise. Otherwise, as the court in Metron made clear, which was echoed in Vale:  Where there is a wanton and reckless disregard for the lives or safety of others, the guilty party will pay.

By Natalie C. MacDonald

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