December 7, 2011

Toronto swing-stage tragedy an important test case: Lawyer

GREG MECKBACH

digital media editor

The criminal charges in connection with the fatal 2009 swing stage accident on a Toronto construction site will be an important test case in health and safety law, according to one employment lawyer.

“It will be interesting to see what happens with the charges in that case,” said Landon Young, a member of the occupational health and safety practice at Stringer Brisbin Humphrey.

“As I understand it the Crown is proceeding with the criminal charges first and will then proceed with charges under the Occupational Health and Safety Act.”

Young was referring to charges against Metron Construction Corp. and company officials in connection with an accident Dec. 24, 2009 in which four construction workers in Toronto were killed after falling from a swing-stage that broke apart. They were performing balcony repairs on a highrise apartment building on Kipling Avenue south of Steeles Avenue about 25 kilometres northwest of downtown Toronto.

The criminal negligence charges, which have yet to be proven in court, were laid in October 2010, two months after 61 charges were laid under the provincial occupational health and safety act.

Young made his comments during the recent Employment Law conference, held by Stringer Brisbin Humphrey at the Toronto Congress Centre. He was addressing a room full of employers on the status of criminal charges and what they could expect in future.

Young gave some background information on section 217.1 of the Criminal Code of Canada, which was brought in nearly eight years ago as a result of Bill C-45, which imposes on those who are “responsible for directing the work of others” a “legal duty to take reasonable steps to prevent bodily harm to any person arising from such work.”

Bill C-45, which came about as a result of the 1992 accident that killed 26 miners in Westray, Nova Scotia, does not create a new criminal offence but has been used as a basis on which to charge employers and managers with criminal negligence.

The standard of proof for criminal negligence charges is higher than that of provincial health and safety offences, Young said.

“If you are charged under the occupational health and safety act essentially, as long as the Crown can prove the actus reus, or the actual action that violated the act, then the burden of proof falls on the supervisor or company that is charged to show they took all reasonable steps, that they could, under the circumstances to prevent that violation or that act or the accident from occurring.”

But in order to prove criminal negligence, Crown attorneys “need to show wanton or reckless disregard,” he added.

In the case last year against Millennium Crane in Sault Ste Marie, Young noted criminal charges were withdrawn. That case was in connection to a crane that toppled into a hole and killed a worker.

Although the Crown stated the crane had not been properly maintained, an engineer’s report could not confirm that even if it had been properly maintained, it would have had the necessary stopping capacity before hitting the wall.

“Criminal charges with health and safety violations are here to stay but we’re not going to see them in most cases,” Young said.

But he added there is considerable political pressure to lay criminal negligence charges against organizations.

“We are going to see continued activity from the labour movement as they try to pressure the government to bring more prosecutions and I think a lot’s going to depend on what happens in the Metron case,” Young said.

“For Ontario, it will be a very important test case to see where that ends up. No doubt if the labour movement is not satisfied with that outcome then we will see more political pressure brought to bear on the government.”

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