Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people���s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

Kootnekoff: The Westray Provisions: R. v. Metron

Last week, we looked at the 1992 Westray mine disaster, and the “Westray amendments” to the Criminal Code that followed.

The intent of the Westray provisions, which apply across Canada, was to make it possible to prosecute corporate criminal negligence for workplace disasters.

One tragic case in which a conviction occurred under the Westray provisions is R. v. Metron Construction Corporation.

On Christmas Eve, 2009, a group of construction workers were repairing a 14th floor balcony. As they completed their shift, six workers, including the site supervisor, climbed onto a swing stage to travel to the ground.

The swing stage had a maximum capacity of two people. There were only two lifelines, which served as fall protection.

The incident occurred when a seventh worker attempted to climb onto the swing stage. This caused it to break apart. Five workers fell to the ground. Four died. The fifth, who improperly wore a lifeline, survived but was seriously injured. The sixth worker, who properly wore a lifeline and was left dangling in mid air, escaped without injury.

RELATED: KOOTNEKOFF: The Westray Provisions: Criminal Responsibility for Workplace Safety

The supervisor had directed the workers to the swing stage, despite knowing that there were only two lifelines. He had also permitted employees who had consumed cannabis to work on the project.

A toxicological analysis determined that at the time of the incident, three of the four deceased, including the site supervisor, “Had marijuana in their system at a level consistent with having recently ingested the drug.”

The usual practice on the project site was for only two workers to be on the swing stage at a time.

The supervisor allowed departures from the usual practice. Six workers rather than only two were permitted on the swing stage, which tripled the maximum capacity. Three times as many workers were permitted on it than there were lifelines.

Something unusual influenced the decision-making process in this case.

The Ontario Court of Justice fined Metron $200,000 plus a $30,000 victim fine surcharge. This was three times Metron’s net earnings in its last profitable year.

The Crown had originally sought a $1 million fine. This would have bankrupt the company.

Upon appeal, the Ontario Court of Appeal increased the fine against Metron to $750,000. In doing so, it sent a strong message about the importance of worker safety.

Meanwhile, in R v. Swartz, a proceeding under provincial OH&S legislation, Joel Swartz, the president and sole director of Metron was fined $90,000 plus a $22,500 victim fine surcharge.

In another related proceeding, R. v Vadim Kazenelson, Vadim Kazenelson, Metron’s project manager, was found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. He was sentenced to 3 ½ years imprisonment. Earlier this year, the Ontario Court of Appeal denied his appeal.

It was recently announced that there will be a coroner’s inquest into this case.

This case illustrates how a corporation can be criminally liable not just for actions or omissions by its people at the top, but also for decisions of site supervisors.

Employers who wish to avoid liability for workplace safety issues ought to regularly review their policies and procedures and make necessary changes.

Directors and senior officers ought to actively foster, and receive regular reports on, the organization’s compliance with health and safety requirements.

There are many additional steps that employers can, and should, take to minimize the risk of criminal prosecution under these provisions.

One step for employers with workers who perform safety-sensitive activities is to consider a drug and alcohol policy, with testing protocols. To the extent not already done, such policies should be amended to reflect that the Cannabis Act is now law Canada.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca . Check out our website, www.inspirelaw.ca.

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