Canada: Project Manager Criminally Convicted For Workplace Negligence Causing Deaths And Personal Injury

Last Updated: August 7 2015
Article by Terri C. Higdon

There is another court decision out of the well-known tragedy in Toronto involving five workers who fell from the thirteenth floor of a high-rise building on December 24, 2009. The men's duties on the date of the accident included pouring concrete on balconies they were using a swing stage to access. During a descent between floors, brackets failed and the swing stage collapsed. The one worker who was attached to a lifeline remained suspended mid-air and was pulled to safety, while the other five workers fell from the 13th floor. Four of the workers died and one sustained serious injuries. The employer, Metron Construction Incorporated ("Metron"), was fined $750,000 in 2013 upon pleading guilty to criminal negligence causing death (R. v. Metron Construction Corp., 2013 ONCA 541).

In the most recent decision (R. v. Vadim Kazenelson, 2015 ONSC 3639), Kazenelson, a project manager with Metron was personally convicted of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm for failing to take steps to prevent the six workers from using a motorized swing stage which had only two lifelines available.

In order to be convicted, the Crown had to prove beyond a reasonable doubt that Kazenelson (i) was criminally negligent; and (ii) that his criminal negligence caused the death or bodily harm. In particular, the Crown was required to prove the following pursuant to the Criminal Code:

  1. that Kazenelson had the authority to direct how the workers did work or performed a task;
  2. that he failed to take reasonable steps to prevent bodily harm to those workers;
  3. that in doing so, he showed wanton or reckless disregard for their lives or safety; and
  4. that the act or omission caused the death or bodily harm in question.

a. Authority

Kazenelson conceded that he had the authority to direct how the workers did their work and therefore he was under a legal duty as set out in the Criminal Code to take reasonable steps to prevent bodily harm to them.

b. Failure to Take Reasonable Steps to Prevent bodily Harm

In assessing whether Kazenelson failed to take reasonable steps to prevent bodily harm, the court found the Ontario Occupational Health and Safety Act and its regulations, as well as the content of suspended access training courses to be of assistance in identifying what steps were reasonable to expect Kazenelson to take. The legislation required that a supervisor ensure that workers work in the manner and with the protective devices, measures and procedures as required by that legislation and specifically required that a supervisor advise workers of the existence of any potential or actual danger to their health or safety known to the supervisor and "take every precaution reasonable in the circumstances for the protection of a worker." In particular, regulations required employees using a suspended platform to wear a full body harness connected to a fall arrest system. Further, suspended access training emphasized the related danger and the necessity of using a fall arrest system at all times. It was clear from the legislation and the training that the presence and use of lifelines was a fundamental rule for swing stage safety.

Kazenelson joined the workers on the afternoon of the day in question using the swing stage, so it would have been obvious to him upon boarding it that there were only two lifelines available. In fact, he actually asked a subordinate about the absence of lifelines but did nothing further. The Court found that in doing nothing about the lack of lifelines and by permitting the workers to board the stage without them, he failed to take reasonable steps to prevent bodily harm to them and therefore breached his duty as imposed by the Criminal Code.

c. Wanton or Reckless Disregard for Lives or Safety

To prove wanton or reckless disregard for the workers' lives or safety, the Crown was required to prove a "marked and substantial departure from the conduct expected of a reasonable person in the circumstances" (para. 126). The requirement that there be fall arrest protection for each worker reflected the fact that suspended access equipment can fail. Kazenelson had taken suspended access training and even took a course that allowed him to train others. Allowing the workers to (1) use a swing stage with insufficient lifelines and (2) to access it with all of their tools despite having no information regarding the weight capacity of the stage, was characterized by the Court as a wanton and reckless disregard for the lives and safety of the workers and a marked and substantial departure of what would be expected of a reasonable supervisor.

d. Causation

The Crown was also required to prove both factual and legal causation. To determine factual causation, the court assessed whether Kazenelson's conduct was a "significant contributing cause" of the bodily injury and deaths. The court found that had Kazenelson taken steps to ensure that each of the workers were tied to a lifeline prior to boarding the swing stage, the deaths and injuries would not have occurred. Regarding legal causation, the court assessed whether Kazenelson "should be held responsible for the death or injury in the eyes of the law" (para. 135). It found that "a reasonable project manager would have contemplated the risk of equipment failure 'as part of the general risk' involved in failing to provide lifelines for workers on a swing stage suspended 100 feet or more above the ground" (para. 146), and that any negligence on the part of the workers by accepting the risk was directly related to Kazenelson's failure to do his duty. Overall, the court concluded that holding Kazenelson responsible would not equate to punishing a moral innocent.

The defence argued that the victims were contributorily negligent for boarding the swing stage without protection and that without such negligence the injuries and deaths would not have occurred. The court refused to accept that argument stating, "a victim's contributory negligence is no answer to a charge of crime" (para. 147), and further that such an argument was contrary to both s. 217.1 of the Criminal Code which places a duty on persons like Kazenelson to take reasonable steps to prevent bodily harm to workers, and occupational health and safety legislation which requires such persons "to take every precaution reasonable in the circumstances" (para. 148).

Kazenelson's sentence is yet to be determined.

Lessons for Managers and Supervisory Staff

The Criminal Code is federal legislation and therefore it applies in all Canadian jurisdictions. Besides the employers themselves, individuals in positions of authority with their employer can be convicted criminally where their negligence in the course of their employment results in bodily injury or the death of workers in their charge. The sentence can range up to imprisonment for life where a death results, or up to ten years for bodily injuries. This is particularly relevant to project managers, lead hands, forepersons, and other supervisory staff in the construction industry and other industries with heightened risks to personal safety.

A copy of the full decision may be found at the following link:

R. v Vadim Kazenelson, 2015 ONSC 3639 (CanLII)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Terri C. Higdon
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.