Corporate killing charges laid against company, 3 men
A Toronto construction company and three men are facing criminal charges in connection with an accident that killed four workers and severely injured a fifth last Christmas Eve.
Metron Construction, Joel Swartz (owner of Metron Construction), Vadim Kazenelson and Benny Saigh have each been charged with criminal negligence causing bodily harm and four counts of criminal negligence causing death.
The charges are the most significant to be levied in Ontario since the Bill C-45 amendments to the Criminal Code — which allow corporations and individuals to be held criminally responsible for workplace fatalities and injuries — came into force in 2004 in response to the 1992 Westray mine disaster that killed 26 workers in Nova Scotia.
“It’s a very strong signal to every employer across the province, indeed across the country, that you can be held criminally responsible if negligence of either the corporation, the company or supervisor acting on behalf of the company, causes the death of a worker,” said Sid Ryan, president of the Ontario Federation of Labour (OFL).
“That’s the kind of signal we need to send out to employers to take health and safety every bit as seriously as they take the bottom line.”
Six men employed by Metron Construction were working on a swing stage scaffold 13 storeys above ground at an apartment complex in Toronto on Dec. 24, 2009.
The platform collapsed when a seventh man attempted to step onto it. Fayzullo Fazilov, Aleksey Blumberg, Alexander Bondorev and Vladimir Korostin were killed. Dilshod Marupov sustained severe injuries to his legs and spine.
Four of the five men were migrant workers, while Bondorev was a landed immigrant who had been in Canada for seven years. Because of their status as vulnerable workers, they may have been unaware of their right to refuse unsafe work or too afraid to speak up, said Ryan.
“These workers were talking amongst themselves and, to use their words, they were terrified to go out on this scaffolding,” he said.
In August, the Ministry of Labour laid 30 occupational health and safety (OHS) charges against Metron Construction, 16 against a director of the company and eight against a supervisor.
Another four charges were laid against Sing ‘N’ Scaff, the supplier of the platform, and three against a director of that company.
On Oct. 13, Supt. Ron Taverner of the Toronto Police Service told reporters “numerous tests” were performed on the scaffolding and police believe they have a strong criminal case.
String of criminal charges in 2010
This year there has been a string of C-45 charges, said Norm Keith, a partner and lead of law firm Gowlings’ national occupational health and safety practice in Toronto.
In British Columbia, the navigating officer of the Queen of the North ferry was charged with criminal negligence relating to the 2006 ferry accident that killed two passengers. Police in Sault Ste. Marie, Ont., charged a crane rental company, Millenium Crane, and two individuals with criminal negligence causing the death of a city worker in 2009.
Also, the Steelworkers union in B.C. launched a private prosecution against Weyerhaeuser in the 2004 death of a sawmill worker.
“Prior to 2010, for the last five years, there’s only been two charges in all of Canada,” said Keith. “Now in 2010, it seems like the police and the crown attorneys have woken up to the fact that they changed the law, five years after the change, and are actually starting to more seriously look at and prosecute Bill C-45 charges.”
The only conviction under C-45 was a plea deal in Quebec where paving-stone manufacturer Transpavé pleaded guilty to criminal negligence causing the death of a worker in 2006. The company was fined $100,000 in March 2008.
While maximum fines for regulatory offences vary from province to province, there is no maximum financial penalty under the Criminal Code and individuals can face life sentences of up to 20 years.
“Risk of criminal investigation prosecution is serious and real and cannot be ignored,” said Keith.
To avoid the risk of criminal negligence charges, employers need to invest in an effective health and safety risk management program to prevent serious injuries, he said.
However, if there is an accident causing serious bodily harm, an organization should immediately retain a lawyer who understands the Criminal Code and can advise the organization of its rights, said Keith.
“Sometimes when you think you’re helping the police, you’re actually incriminating yourself,” he said.
Employers ‘not getting the message’: OFL
With 40 to 50 workers dying every year on the job in Ontario, more criminal prosecutions are among the best way to improve workplace health and safety, said Ryan.
“Clearly, employers are not getting the message that they have an obligation to ensure when somebody leaves for work in the morning that they come home to their families safe and sound at nighttime,” he said.
Every time there’s a workplace death or serious injury, the OFL sends a package to the crown attorney and the chief of police urging them to conduct a criminal investigation and lay charges if appropriate, said Ryan.
“Not every employer is a bad actor when it comes to health and safety. It’s the ones that are that we need to go after,” he said. “Then I hope the message gets through that everybody better take health and safety very seriously because now you can be charged criminally if you don’t.”
However, while criminal charges heighten the seriousness of health and safety and motivate employers to make safety a priority, there are better ways to accomplish this goal, said Keith.
For example, a coroner’s inquest, instead of laying blame, would investigate why the deaths occurred, what went wrong and make recommendations to avoid a similar situation in the future, said Keith.
“But a coroner’s inquest won’t happen until all the legal charges are dealt with,” he said.
