On January 11, 2016, Vadim Kazenelson was sentenced to 3½
years' imprisonment after having been found guilty of criminal
negligence causing death and criminal negligence causing bodily
harm for his role in a tragic construction incident. Five workers
lost their lives and one worker was seriously injured after the
swing stage on which they were working suddenly collapsed.
Kazenelson, a project manager at a Toronto-based construction
company, had failed to ensure that every worker was attached to a
lifeline as required by both the law and industry practice, and had
failed to take steps to ensure that a sufficient number of
lifelines were available for the workers.
As a matter of fact, only two lifelines were available, even
though six workers were working on swing stages that day.
In his sentencing decision, Justice MacDonnell of the Ontario
Superior Court mentioned that the offender was aware that the
workers were working 100 feet or more above the ground without
lifelines, and that his duty to take steps to fix this situation of
danger was fully engaged. Justice MacDonnell came to the conclusion
that given these circumstances, "a significant term of
imprisonment is necessary to reflect the terrible consequences of
the offences and to make it unequivocally clear that persons in
positions of authority in potentially dangerous workplaces have a
serious obligation to take all reasonable steps to ensure that
those who arrive for work in the morning will make it safely back
to their homes and families at the end of the day."
This decision, which is now under appeal, appears to be the
harshest sentence given by a Canadian Court for a breach of the
duty imposed in section 217.1 of the Criminal Code, which
Every one who undertakes, or has the
authority, to direct how another person does work or performs a
task is under a legal duty to take reasonable steps to prevent
bodily harm to that person, or any other person, arising from that
work or task.
This section of the Criminal Code came into force in
2004 in response to the tragic death of several miners in a violent
explosion that took place in a Nova Scotia mine in 1992. The
explosion occurred in a context where a gas detection device had
been disabled for productivity reasons, as it would frequently
interrupt the activities of the mine. This provision was added to
the Criminal Code so as to allow the Crown to prosecute
individuals and corporations whose failure to safeguard of the
health and safety of the workers under their supervision resulted
in bodily harm.
While some corporations have been required to pay hefty fines
under this provision over the past years, including the
Québec-based Transpavé company in 2008, the
Kazenelson case could mark the beginning of an era where
prison sentences will be imposed on persons in position of
authority who blatantly breach their duty to take reasonable steps
to prevent bodily harm to other people under their authority.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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