Landmark fines in 2009 Christmas Eve fatalities

TORONTO (Canadian OH&S News)

The highest criminal fine for corporate negligence causing death in Canadian history was handed down on Friday, but Ontario’s Federation of Labour says it is not enough.

Metron Construction Ltd., the company responsible for the deaths of four workers and the critical injury of another after a swing stage collapsed in Toronto in 2009, was fined $200,000 plus an additional $30,000 victim fine surcharge — double the previous largest fine and the first corporate guilty plea in Ontario since Criminal Code revisions were made in 2004. All 30 Occupational Health and Safety Act charges against Metron were dropped as part of the guilty plea.

Company owner Joel Swartz was also fined $90,000 — the highest cumulative fine to an individual — after pleading guilty to four charges at $22,500 each under OSHA. The previous highest fine against an individual was $70,000. Twelve OSHA charges against Swartz were dropped as part of the plea deal.

“This is a disgraceful ruling,” Sid Ryan, president of the Ontario Federation of Labour, said on the steps of Toronto’s Old City hall after the ruling. “It means that in this province, a life is worth $50,000.”

Ryan questioned how the fine would send a message to employers, noting that there have been larger fines handed out under OSHA.

“I believe that they will look upon this, when it comes to health and safety, that this is the cost of doing business in Ontario,” he said. “I didn’t even really think that the million dollars was sufficient, I believe that jail time is what was required.”

In arriving at the decision, Justice Robert Bigelow wrote that the fines to Swartz, the financial status of Metron and Swartz and prior good character of the corporation, as well as the severity of the failures of its legal duty, formed his decision. The Crown had put forward for a $1-million sentence against Metron while the defence suggested $100,000 would be appropriate, arguing that the faulty construction of the swing stage was responsible for the incident.

Metron is the first corporation to plead guilty in Ontario under criminal charges since Bill C-45 was introduced in 2004. It included specific workplace health and safety duties as well as broadened the standards for a criminal negligence charge against a corporation. The bill, also known as the Westray Bill, was enacted after Nova Scotia’s Westray Mine disaster in 1992 that killed 26 miners.

Swartz pleaded guilty to failing to take all reasonable care to ensure workers did not use a defective or hazardous swing stage, the swing stage was not loaded in excess of the weight it was meant to bear, workers were adequately trained in the use of fall protection by a competent person and that Metron prepared and maintained written training and instruction records for each worker. Court documents note that Swartz had no prior record of oh&s violations in more than 20 years in the construction industry.

Christmas Eve fatalities led to Ontario oh&s overhaul

On Christmas Eve in 2009, four migrant workers, Alesandrs Bondarevs, Aleksey Blumberg, Vladamir Korostin and Fayzullo Fazilov were killed and another, Dilshod Marupov, was seriously injured when the swing stage they were working on collapsed and they fell about 14 storeys. Six workers were on the swing stage, but when a seventh attempted to climb in, the stage split in the middle. One of the workers was tied off and was unhurt.

The swing stage, which was meant for a maximum of two workers with equipment, weighs about 450 kilograms and the two arms that were supporting it were rated for about 450 kg. each. Evidence in court revealed that Ottawa-based rental company Swing ‘N’ Scaff, who provided the platform, had built the stage themselves. In Justice Bigelow’s decision he notes that the stage was not properly constructed and arrived without any manual, instructions or product information.

“As a result [the stage] would not have been safe for two workers let alone six with tools and other materials,” he wrote.

In agreed statement of facts, supervisor Fazilov allowed six workers to be on the scaffold knowing it was unsafe. There were only two lifelines available and three of the four workers, including Fazilov, had marijuana in their system.

A total of 61 OSHA charges were laid after the incident. Almost half were against Metron, 16 against Swartz and eight against a supervisor. Swing ‘N’ Scaff was charged with four contraventions of the Act and the company’s director was charged with three. The MOL also launched a three-month safety blitz on fall hazards.

Criminal charges were laid in October of 2010. Metron, Swartz, project manager Vadim Kazenelson and Benny Saigh were each charged with criminal negligence causing bodily harm and four counts of criminal negligence causing death. Charges against Saigh were dropped when it was revealed he had no formal employment with Metron.

A preliminary hearing for Kazenelson commenced in May to determine if there is sufficient evidence to proceed to trial.

A survivor of the collapse has filed a suit against Metron, Swing ‘N’ Scaff, the owners of the apartment building and the MOL for more than $16 million. Fazilov’s estate has also filed a claim. The claims, which have not been proven in court, allege the men received improper training, inadequate safety gear and the scaffold was faulty.

There has only been one prior conviction under the Criminal Code relating to workplace negligence causing death. In March of 2008, Transpave Inc. was fined $100,000 by Quebec courts after a young worker was crushed by a machine while trying to clear a jam. The company had disabled the system that would have guarded the worker from accessing the area.

In addition to the penalties handed down, the court has the opportunity to place a corporation on probation, force restitution payments to a person and provide information to the public explaining the offence, the sentencing and how the incident will be avoided in the future.

With files from Sabrina Nanji

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