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$750K Fine in 4 Deaths; Pot, Load Cited

Tuesday, September 10, 2013

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A construction contractor that allowed six workers—including a supervisor who had just smoked marijuana—on a swing stage built for two has been fined $750,000 in the scaffold's fatal collapse.

Ontario's top court has more than tripled the fines against Toronto-based Metron Construction Corp. (now known as Formstructures Inc.) in the Christmas Eve 2009 collapse that killed four immigrant workers and permanently disabled a fifth.

The scaffold was equipped with only two lifelines, three of the crew had been smoking marijuana, and only one of the workers (who had not been smoking) was tied in at the time of the 13th-story collapse. The worker who had been wearing a harness was uninjured.

Now, citing "extreme" criminal negligence by Metron, the Court of Appeal for Ontario has increased the company's original $200,000 fine in the case to $750,000.

'Manifestly Unfit'

In a ruling released Wednesday (Sept. 4), the appellate court said the lesser fine was "manifestly unfit" for the "nature and gravity of the offense." The ruling said the lower-court judge should have assessed fines according to the penalties under the Criminal Code, rather than the Occupational Health and Safety Act (OHSA).

Vladimir Korostin
Supplied photo

Vladimir Korostin, 40, was in the process of reconciling with his former wife of 15 years when he died. His daughters were 6 and 14 at the time of the accident.

Metron, which is now operating under a different name, is the first company in Ontario history to plead guilty to criminal charges in a worksite accident. Metron's president, Joel Swartz, had faced criminal charges in the case, but they were later dropped because prosecutors were not confident of conviction. Criminal charges against the scaffolding provider, Swing 'N' Scaff, were also dropped.

Instead, Swartz was fined $90,000 and pleaded guilty to four violations of the OHSA code, which was amended after the collapse—the worst construction accident in Toronto in more than 50 years.

Bonuses and Deadlines

The fatal project began in September 2009, when Metron received a contract to restore concrete balconies on two Toronto high-rise apartment buildings, according to the Court of Appeals. The company hired Fayzullo Fazilov, 31, as site supervisor for the project. Fazilov, a native of Uzbekistan, had been in Canada for two years.

The original deadline for the project was Nov. 30, 2009, but delays ensued. Eventually, Metron was offered a $50,000 bonus to complete the project by Dec. 31, 2009.

To meet the new deadline, the company ordered additional 40-foot-long swing stages. Its regular vendor was out of stock, so the new stages came from Swing 'N' Scaff and arrived Oct. 27.

Unmarked Equipment

Although the swing stages appeared to be new, "neither had any markings, serial numbers, identifiers, or labels describing maximum capacity, as required by both occupational health and safety legislation and industry practice," the appellate court said.

Aleksey Blumberg Aleksey Blumberg
Supplied photos

Aleksey Blumberg, 33, had been married three months and was planning to start a family when he was killed.

"The two swing stages arrived without any manual, instructions, design drawings, or other product information."

Fazilov, like his crew a relatively recent immigrant from Central or Eastern Europe, set up the stages with a project manager whom the company "believed had obtained training," the court said. The project manager, Vadim Kazenelson, is now facing criminal charges in the case.

The workers could not read English and were not trained in fall protection, the court said.

6 Workers, 2 Lifelines

The stages were designed for two workers at a time, but at 4:30 p.m. on Dec. 24, close to the end of the working day, Fazilov boarded one swing stage on the 14th floor with five workers to travel to the ground. The stage had only two lifelines, the court said.

The men's weight broke the scaffold almost immediately, hurling all but one to the ground. The worker who had been secured was uninjured. All of the men "were of limited financial means," none had life insurance, and none received restitution from Metron, the court said.

The permanently injured worker, a roommate of Fazilov, had no work permit and was in Canada on an expired student visa.

Toxicology results showed that two of the crew members and Fazilov had recently smoked marijuana, the court noted. Furthermore, the investigation showed that the swing stage was defective and was not designed to handle the weight of the men and their equipment.

Metron officials told the court that company practice was to require a lifeline for each worker and that they did not know why the practice had not been followed on that occasion.

'Reinvented' Firm

Prosecutors had sought a $1 million fine, calling the accident "totally preventable" and the fine necessary to send a signal of deterrence to the construction community.

Metron Construction website Formstructures
Company websites

A lower court fined the former Metron Construction (left) $200,000, saying a larger penalty would bankrupt the firm. Prosecutors said that ability to pay was irrelevant and that the firm had a solvent new life as Formstructures (right).

The Crown said Metron was now a shell company that Swartz had "reinvented" profitably as a new business, called Formstructures Inc. of Toronto. The Formstructures website is a twin of Metron's former site and, like Metron, bills the company as the "architects [sic] contractor."

Attorneys for Metron contended that the company "had demonstrated remorse and by pleading guilty, had spared everyone the emotional toll and financial cost of a trial." In a statement, Swartz and Metron called Fazilov's actions a "lapse in judgment."

The defense asked for a fine of $100,000, saying Swartz was broke.

In the end, the lower-court judge set the fine at $200,000, plus a 15 percent Victim Fine Surcharge, based partly on the company's ability to pay.

Companies and Crimes

In rejecting the lower-court fine, the appeals court said that the company's ability to pay the fine should not be a consideration and called a $200,000 penalty "manifestly unfit in the circumstances of this case."

The appeals court noted that Canada's Bill C-45, which took effect in 2004, amended national law specifically to hold corporations criminally liable for ignoring worker safety. (Previously, a specific corporate officer had to be individually identified as a "directing mind" of the negligence.) The bill followed the deaths of 26 coal miners in a methane-gas explosion in 1992.

The court noted that Bill C-45 subjected "a much broader range of conduct" to corporate ciminal liability and said that Metron "should not be able to distance itself from culpability" by blaming the accident on Fazilov.

Unlike a regulatory offense, where fines are limited to $500,000, criminal negligence carries the potential for unlimited fines, in order to deter and punish, the appellate court ruled.

Indeed, the court noted, fines could potentially run into the millions of dollars.

'Cost of Doing Business'

"A sentence consisting of a fine of $200,000 fails to convey the need to deliver a message on the importance of worker safety," the appellate court ruled.

"Indeed, some might treat such a fine as simply a cost of doing business. Workers employed by a corporation are entitled to expect higher standards of conduct than that exhibited by the respondent.

"Denunciation and deterrence should have received greater emphasis. They did not. The sentence was demonstrably unfit."

   

Tagged categories: Access; Accidents; Enforcement; Fall protection; Fatalities; Health and safety; Laws and litigation; Scaffolding; Work platform

Comment from Billy Russell, (9/10/2013, 4:55 AM)

Prayers for the lost and their families, commending Canada for increasing the fine a good example to follow in the US


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