July 16, 2012

Sentencing hearing set for swing-stage negligence case

GREG MECKBACH

DCN digital media editor

Metron Construction Corp. recently pleaded guilty to charges of criminal negligence in connection with an accident on Christmas Eve, 2009 that killed four construction workers, who fell from a swing-stage that broke apart in Toronto.

Published reports indicate the crown attorney is seeking a fine of $1 million against the corporation, while some labour leaders are calling for someone to go to jail.

“Submissions on sentencing have begun,” a Ministry of the Attorney General spokesperson wrote in a June 27 email to the Daily Commercial News.

The matter was adjourned on June 27 and continuing submissions resumed on June 28.

Metron supervisor Fayzullo Fazilov, along with Vladimir Korostin, Aleksey Blumberg and Alexander Bondorev, died after they fell 13 storeys December 24, 2009.

They were working on a highrise apartment building at 2757 Kipling Avenue south of Steeles Avenue, about eight kilometres west of York University.

A fifth worker, welder Dilshod Marupov, survived the fall, but suffered severe leg and spinal injuries.

In August, 2010, the Ontario Ministry of Labour brought 61 charges under the Occupational Health and Safety act against both the employer and the equipment supplier.

Then in October, >Toronto Police charged Metron, along with three Metron officials, Joel Swartz, Vadim Kazenelson and Benny Saigh, with criminal negligence.

The criminal negligence charge against Swartz, described on Metron’s website as the company’s president and by the province as a company director, was withdrawn because the Crown said “there was no reasonable prospect of conviction,” the Ministry of the Attorney General spokesperson wrote.

Section 217.1 of the Criminal Code of Canada was passed in 2004 as a result of Bill C-45.

It 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.”

It was also known as the Westray Bill due to the accident in 1992 in the Nova Scotia community of the same name that killed 26 miners.

Both the United Steelworkers and Ontario Federation of Labour (OFL) published press releases reacting to the Metron case.

“While the fine against the company is historic, as long as individuals are off the hook for negligence in workplaces they control, workers will continue to be at risk,” United Steelworkers national director Ken Neumann stated in a press release.

The release from the OFL had a similar tone.

“Last year alone, 436 workplace accident and occupational disease fatalities were reported in Ontario and over 240,000 injury claims were filed. This carnage in the workplace is leaving too many grieving families,” OFL president Sid Ryan stated in a press release.

“Unless negligent employers face jail time, they will simply be able to buy their way out of responsibility and write off any potential fine as the cost of doing business. Without full justice under the law, workers will continue to lose their lives while their employers turn a profit.”

With provincial Occupational Health and Safety Act charges, the onus is usually upon the defendant to prove that they took all reasonable steps that they could to prevent the accident from occurring.

But, in order to prove criminal negligence, the crown needs to prove the defendant showed “wanton or reckless disregard.”

According to the Ministry of the Attorney General, Swartz pleaded guilty to four provincial health and safety charges.

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