METRON CONSTRUCTION TRAGEDY LESSONS LEARNED

Transcription

1 METRON CONSTRUCTION TRAGEDY LESSONS LEARNED Norm Keith Partner Fasken Martineau DuMoulin LLP Phone:

2 AGENDA 1. Factual Background 2. Multiple Agency Investigations 3. Charges against Employer And CEO 4. Charges against Swing N Scaff 5. Charges against Project Manager 6. Non-legal Reaction To Metron Tragedy 7. Mitigation Legal Risk 2

3 Factual Background The Project Repair concrete balconies of two 18 storey Apts. From suspended scaffolds bolted together Metron rented swing stages from Swing N Scaff Inc. Metron hired Kazenelson as Project Manager and Fazilov as Site Supervisor Metron employees accessed balconies from the ground by motorized swing stages 3

4 Factual Background Safety Precautions Workers had general safety training and were directly supervised by Fazilov Workers had specific fall arrest protection training and body harnesses and his life lines Workers were all aware of need to tie off their body harnesses to a lifeline MOL had made inspections and never observed workers not using safety lines 4

5 Factual Background The Accident December 24, 2009 crew working under Fazilov s supervision Kazenelson attended project in morning and just before the accident in the afternoon Workers and Fazilov on swing stage with only 2 live lines Swing stage sections broke apart, 4 workers die, (including Fazilov), one seriously injured 5

6 Multiple Agency Investigations Multiple Investigations December 25, 2009 Accident received national, prolonged media coverage and political scrutiny Police took lead role in accident investigation MOL inspectors and staff professional engineers investigated Police conducted criminal investigation at the same time as MOL investigation 6

7 Multiple Agency Investigations Multiple Investigations - Lessons Learned No authority for joint investigations/evidence sharing MOL inspectors/engineer key witnesses in criminal trial Charter right to remain silent in criminal investigation: R. v. Hebert Charter right diminished in MOL investigation: R. v. Horner Legal counsel must be immediately retained 7

8 Charges Against Employer & CEO Employers and CEO Charged Metron and J. Swartz charged with multiple criminal and OHSA offences Criminal charges proceeded to Preliminary Inquiry Swartz pleaded guilty to 4 OHSA offences ($22,500/count) Metron plead guilty to 1 criminal negligence charge, fined $200K Court of Appeal increased fine to $750,

9 Charges Against Employer And CEO Employers and Officers - Lessons Learned Employers, Directors and Officers have legal obligations Serious workplace accidents charges and convictions can destroy careers and companies Courts giving harsher white collar penalties to corporations Jail may be avoided by early guilty plea (J. Swartz) OHS Due Diligence applies to all workplace stakeholders 9

10 Charges Against Swing N Scaff Charges Against Scaffold Supplier and Director Legal duties on supplier when swing stage leased (not sold) Multiple-section swing stage breaks apart causing workers to be exposed to fall hazards Scaffold blamed for accident by Employer, CEO and Project Manager Supplier and Director charged with OHS charges On guilty plea, supplier fined $350K, Director $50K 10

11 Charges Against Swing N Scaff Equipment Supplier - Lessons Learned Legal duties on suppliers to provide, maintain equipment in good condition Manage legal risk by clear, well-written supplier contracts Suppliers must establish due diligence by inspection, review and records Suppliers need to retain legal counsel asap when equipment involved in accident 11

12 Charges Against Project Manager Criminal Charges Against Kazenelson ( K ) K hired by CEO as Project Manager for project K hired Fazilov as on-site supervisor for day-to-day supervision at project K investigated by police, prosecuted criminally K had to go through Preliminary Inquiry and trial Convicted of 5 counts of OHS criminal negligence January 11, 2016, sentenced to jail term 12

13 Charges Against Project Manager Project Managers/Supervisors - Lessons Learned Legal duties under OHS and Criminal Code are joint, several and non-delegable Need to have proper training, experience, and authority on project Managers risk being blamed by employer, CEO and workers after accident Managers/Supervisors may need independent legal counsel immediately after accident 13

14 Non-legal Reaction To Metron Tragedy Media, Political and Policy Reaction December 24, 2009 accident had broad media, political, policy and legislative reactions Reporters following CEO to his house - intense scrutiny Dean Commission established by McGuinty government 46 Recommendations Leads to Bill 160 Amendments to OHSA Established the Chief Prevention Officer (CPO) 14

15 Non-legal Reaction To Metron Tragedy Role of CPO CPO consolidates SWA, causing confusion and mixed messages on safety prevention CPO increases JHSC Certification from 2 to 3 days CPO s 2015 media release: there will be consequences MOL sued civilly for negligent inspections MOL prosecutes more employers and individuals Growing culture of blame by Regulators across Canada 15

16 Mitigation Legal Risk Understand legal duties on all stakeholders under OHS and Criminal laws Don t rely on OHS Regulators for safe workplace Promote the Paul O Neil Effect as business goal Establish OHSMS that exceeds legal compliance Get legal advice immediately whenever Accident occurs or Orders issued 16

17 17 For More Information, Please contact: Norm Keith Partner Fasken Martineau DuMoulin LLP Phone: