R. v. Swartz, 2012 ONCJ 505

COURT FILE No.: 4811 999 10 101011 Citation: R. v. Swartz , 2012 ONCJ 505 ONTARIO COURT OF JUSTICE BETWEEN: The Queen — AND — Joel Swartz Before Justice R. Bigelow Heard on June 15 & 28, 2012 Reasons for Judgment released on July 13, 2012 T. Schneider .................................................................................................... for the prosecution J. Naster ........................................................................................ for the defendant Joel Swartz Bigelow J.: [ 1 ] Mr. Swartz has entered guilty pleas to charges that he: i.

Did commit the offence of failing to take all reasonable care to ensure, as a director of Metron, that the corporation complied with

section 26.2(1) of Ontario Regulation 213/91, as amended, contrary to subsection 32(

a) of the Occupational Health and Safety Act (OHSA), as amended.

Section 26.2(1) of the Regulation requires that an employer shall ensure that a worker who may use a fall protection system is adequately trained in its use and given adequate oral and written instructions by a competent person. Joel Swartz acknowledges that in his capacity as a director he failed to ensure that all workers who could not read English, received adequate written instructions in their native languages. [Count 47] ii. Did commit the offence of failing to take all reasonable care to ensure, as a director of Metron, that the corporation complied with

section 26.2(3) of Ontario Regulation 213/91, as amended, contrary to subsection 32(

a) of the OHSA.

Section 26.2(3) of the Regulation requires that the person who provides the training and instruction on the use of a fall protection system prepare a written training and instruction record for each worker which shall include the worker's name and the dates on which training and instruction took place. Joel Swartz acknowledges that in his capacity as a director he failed tonsure that the training and instruction record to be maintained by the person who provided the training included the worker's name and the dates on which training and instruction took place. [Count 48] iii.

Did commit the offence of failing to take all reasonable care to ensure, as a director of Metron, that the corporation complied with

section 93 of Ontario Regulation 213/91, as amended, contrary to subsection 32(

a) of the OHSA, as amended.

Section 93 of the Regulation requires that no equipment shall be used while

it is defective or hazardous. Joel Swartz acknowledges that in his capacity as a director he failed to ensure that the suspended work platform (swing stage) which collapsed was not used while it was defective or hazardous. [Count 50] iv. Did commit the offence of failing to take all reasonable care to ensure, as a director of Metron, that the corporation complied with

section 134 of Ontario Regulation 213/91, as amended, contrary to subsection 32(

a) of the OHSA, as amended.

Section 134 of the Regulation requires that no scaffold platform or other work platform shall be loaded in excess of the load that it is designed and constructed to bear. Joel Swartz acknowledges that in his capacity as a director he failed to ensure that the scaffold platform used by the workers on December 24, 2009 was not loaded in excess of the load that the platform was designed and constructed to bear. [Count 55] THE FACTS [ 2 ] Mr. Swartz is the owner and sole director of Metron Construction Corporation (Metron).

Metron entered into a contract to do repair work on the balconies of 2 buildings in the City of Toronto. On the 24 th of December, 2009 a suspended work platform being used on the project collapsed. Six workers were on the platform at the time of the collapse. Five of the workers fell approximately 14 floors to the ground. The sixth worker, the only worker properly attached to a lifeline, was held by his lifeline and suffered no injuries. Four of the five workers who fell including the site supervisor died as a result of injuries sustained in the fall.

The fifth worker suffered significant injuries but survived the fall. [ 3 ] The parties have provided a detailed agreed statement of fact providing background to the charges before the court. [1] [ 4 ] Metron has entered a guilty plea to a charge of criminal negligence causing death before me and a more detailed account of the factual background to the incident is contained in the judgment with respect to that matter. In this judgement I will only be dealing with the facts specific to the charges to which Mr.

Swartz has entered guilty pleas. [ 5 ] With respect to counts 47 and 48 it is agreed that although Metron did provide safety training to workers on the project and that a number of the workers had received safety training during the course of previous employment, Mr.

Swartz as a director failed to ensure that non English speaking workers received written material in their native languages and failed to ensure that training records as required by the Regulations under OHSA were maintained. [ 6 ] With respect to count number 50 it is acknowledged that when the swing stage that collapsed arrived at the project neither it or its components had any markings, serial numbers, identifiers or labels with regard to the stages maximum capacity.

It is also acknowledged that the swing stage arrived without any manual, instructions or other product information such as design drawings prepare by an engineer as required by the OHSA . By allowing the swing stage to be used without having received any of the required information with respect to its capacity and use Mr. Swartz as a director failed to ensure that the platform was not defective or hazardous. [ 7 ] With respect to count 55, although it is acknowledged that the normal practice on the project site was for only two workers to be on a swing stage at any time, Mr.

Swartz as a director failed to ensure that the platform was not loaded in excess of the load that the platform was designed and constructed to bear on the 24th December 2009. POSITIONS OF THE PARTIES [ 8 ] The parties have placed before me a joint submission for fines of $22,500 per count. The maximum fine permitted by the legislation for an individual is $25,000. [2] Therefore, the joint submission is for a fine of 90% of the maximum. [ 9 ] However, the parties are not in agreement with respect to whether or not time to pay should be allowed.

The Crown submits that there is insufficient information before the court to make a determination that Mr. Swartz is not able to pay the fine proposed within the 15 days provided by the Provincial Offences Act while Mr. Naster argues that the incident resulting in the charges before the court has had a dramatic impact on Mr. Swartz’s financial position and that the court should grant a reasonable amount of time perhaps up to a year to pay. DISCUSSION [ 10 ] Mr. Swartz is a 53 year old man, married with 4 children whom he supports.

He received a degree in Mechanical Engineering in 1983 and incorporated Metron in 1987. He has no prior record of violation of either health and safety legislation or criminal offences. His net income has dropped by 50% between 2010 and 2011 to approximately 75,000 largely as a result of this matter. [ 11 ] Health and safety legislation exists to protect workers from serious injury or death in the workplace and the overriding principle to be considered by the court is that of deterrence and any fine imposed “must be substantial enough to warn others that the offence will not be tolerated.” [3]

[ 12 ] In the circumstances here, where I am dealing with serious breaches of health and safety legislation with horribly tragic consequences but an accused with over 20 years experience in the construction industry without any violations of health and safety legislation, I am satisfied that the imposition of the fines as jointly recommended by two senior and experienced counsel would not be contrary to the administration of justice and accordingly I impose fines of $22,500.00 on each of the 4 counts to which guilty pleas were entered along with the statutorily required 25% victim fine surcharge. [ 13 ] With respect to the issue of time to pay,

section 66 of the Provincial Offences Act requires that the court inquire as to whether the defendant wishes an extension of time to pay a fine and that: Unless the court finds that the request for extension of time is not made in good faith or that the extension would likely be used to evade payment, the court shall extend the time for payment by ordering periodic payments or otherwise. [4] [ 14 ] The total fines imposed are an amount well above Mr.

Swarz’s total income for the last year and there is no reason to believe that the request for an extension is made in bad faith or would be used to evade the payment of the fine and accordingly I am required grant a reasonable extension of time. I am of the view that payment of half of the fine within 6 months and the remainder within 12 months is reasonable. Therefore, I order that the fines with respect to counts number 47 and 48 be paid within six months and the fines with respect to counts 50 and 55 be paid within 12 months.

Both of those payments to include both the fine and the Victim Fine Surcharge. [ 15 ] I thank both counsel for their hard work in resolving this difficult matter fairly. Released: July 13 th , 2012 Signed: “Justice Robert Bigelow”