Northern Exposure

Independent contractor’s behavior can lead to criminal liability for employers

By Antonio Di Domenico

On Christmas Eve 2009, a swing stage (a work platform) suspended on the 14th floor of an Ontario apartment building collapsed. Four workers including the site supervisor died after falling to the ground.

Metron Construction was charged with criminal negligence causing death under Canada’s Criminal Code. The company’s owner and sole director, Joel Swartz, was charged under Ontario’s Occupational Health and Safety Act. Both the company and Swartz pleaded guilty. In two decisions, R. v. Metron and R. v. Swartz, both were fined significantly.

The basis for the charges and fines? The expanded scope of criminal liability under Canada’s Criminal Code, which is no longer confined to the “directing mind” of a corporation. Here it applied to an independent contractor.


Salient facts

Metron had contracted to restore certain concrete balconies on two high-rise buildings. Metron employed two permanent employees, both of whom worked in its office. All others were independent contractors.

Of particular note, Metron contracted with an individual to serve as the project manager. The project manager in turn contracted with another individual to serve as the site supervisor. The site supervisor had his own construction company.

The swing stage that collapsed had been rented from an independent company. It arrived appearing new. However it lacked any markings regarding the stage’s maximum capacity and arrived without a manual or other product information. There were only two lifelines on the swing stage despite the presence of six workers.

Toxicological reports showed that the site supervisor and two of the three workers who died had marijuana in their systems at levels consistent with having recently ingested the drug.

On the plus side, Metron had taken some positive steps before the accident, including arranging a fall arrest course for the project manager, site supervisor, and workers. It also had given safety manuals to workers. Also, Swartz had attended the site weekly and didn’t observe any workplace violations.


Expanded scope of criminal negligence

Bill C-45 amended Canada’s Criminal Code and became law on March 31, 2004. The bill significantly expanded the scope of criminal liability for employers and was intended to make criminal negligence convictions against employers easier to obtain. This objective has clearly been met in this case.

Metron was liable based mainly on the behavior of its site supervisor, an independent contractor. According to the court, the site supervisor failed to take reasonable steps to prevent bodily harm and death by:

  •  directing and/or permitting workers to work on the swing stage when he knew or should have known that it was unsafe to do so;
  • directing and/or permitting six workers to board the swing stage knowing that only two lifelines were available; and
  • permitting persons under the influence of drugs (including himself) to work on the project.

There was no suggestion that Swartz was aware of these actions.

Notwithstanding the above, both Metron and Swartz were charged and convicted. In the result, Metron must pay $200,000, plus a 25 percent victim fine surcharge, in connection with a conviction of criminal negligence causing death under Canada’s Criminal Code. Swartz must pay $90,000, plus a victim fine surcharge, in connection with four convictions under Ontario’s Occupational Health and Safety Act.


Lessons for employers

There are a number of lessons that Canadian employers should take from the Christmas Eve tragedy and its aftermath:

  •  Employers across Canada can be criminally liable for the actions of those who work for them, whether employees or independent contractors. An employer can’t escape criminal liability by contracting with independent contractors that in turn contract with others.
  • Employers can be criminally liable for the actions of their local managers or supervisors. Site supervisors – as well as store, branch, or plant managers – typically carry a high degree of local responsibility over a site, project, or plant. They typically have few if any responsibilities in the corporate hierarchy of an organization. Nevertheless, their actions can have criminal consequences for their employers.
  • Investments should be made in health and safety management as well as safety training and prevention. Employers should ensure that all supervisors are fully aware of their safety obligations and adhere to these obligations at all times. That includes remedying safety concerns as soon as they are discovered.