In a first for the province of Ontario, on January 11, 2016, a construction project manager charged and convicted under the Bill C-45 amendments to the Criminal Code was sentenced to serve time in prison for criminal negligence for his role in a workplace accident that resulted in the deaths of four employees and very serious injuries for a fifth worker.
Parliament enacted Bill C-45 in 2004 in response to an inquiry into the 1992 Westray mining disaster in Nova Scotia that killed 26 miners. Among its more notable amendments was the addition to the Criminal Code of Section 217.1, which requires "everyone who undertakes, or has the authority, to direct how another person does work or performs a task... [must] take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task." This is the law under which the Crown charged the project manager in question.
Metron Construction engaged Vadim Kazenelson in 2009 to act as project manager for the repair of two apartment buildings' concrete balconies in Toronto. The company performed the work using motorized "swing stages" (otherwise known as suspended scaffolding) suspended from the roofs of the buildings. As Kazenelson had no experience restoring concrete on high-rise buildings and had never before worked with suspended access equipment such as swing stages, he hired an on-site supervisor for the project who had experience in balcony restoration. The day-to-day supervision of the employees was entrusted primarily to this on-site supervisor. However, due to an approaching year-end deadline to complete the work, Kazenelson decided to attend the worksite to assist and was, as a result, directly involved in the Christmas Eve accident.
Prior to the day of the accident, only two employees at a time would typically be working on the swing stage. By December 24, 2009, however, it was "all-hands-on-deck" to get the project done. Thus, Kazenelson, the on-site supervisor and five other employees were working on the swing stage as it was suspended 13 floors above the ground. Unfortunately, only one of the seven employees was properly connected to a lifeline when the swing stage collapsed. Five of the remaining six employees fell some 100 feet to the ground below – one of whom miraculously survived, albeit with serious injuries. Unbeknownst to Kazenelson, the swing stage had been designed and manufactured so poorly that the judge concluded "even under normal use it was doomed at some point to collapse." As a result of the accident, the Crown charged both Metron and Kazenelson not only under the Occupational Health & Safety Act (OHSA), but also under Section 217.1 of the Criminal Code.
In issuing its historic 3.5-year prison sentence to Kazenelson, the Ontario Superior Court of Justice acknowledged that he was of good character, hardworking, devoted to his family, involved in his community and remorseful. However, the court noted that a term of imprisonment was necessary to adequately denounce Kazenelson's conduct and to deter other supervisors and managers from taking similar risks.
Kazenelson's conduct was viewed by the court as "morally blameworthy" given he knew of the serious risk to the lives and safety of his workers but decided it was in Metron's interest to take a chance in light of the imminent project deadline. The court noted Kazenelson had been properly trained in fall arrest systems and, prior to the day of the accident, had been strict in enforcing the lifeline requirement. Thus, the court determined that Kazenelson was aware each worker must be tied off separately by law but inappropriately concluded that it was not worth doing so in light of the delay to the project.
While his conviction is under appeal, we note that Kazenelson's recent prison sentence is just part of the legal fallout of the Metron swing stage collapse. In addition to Kazenelson's prison sentence:
- Metron pled guilty to criminal negligence causing death under the Criminal Code and was ultimately fined $750,000;
- Metron's president pled guilty to charges under the OHSA and was fined $90,000 (plus 25% victim surcharge);1
- Swing N Staff Inc. (the provider of the defective swing stage) pled guilty to charges under the OHSA and was fined $350,000 (plus victim surcharge); and
- A director of Swing N Staff Inc. pled guilty under the OHSA and was fined a total of $50,000 (plus victim surcharge).
Why Is This Case Important?
As noted above, this case is remarkable because it marks the first ever prison sentence for workplace criminal negligence handed down in Ontario under Bill C-45. Given that the Metron swing stage collapse was among the worst workplace accidents in recent Ontario history, employers (both in the construction industry and otherwise) can expect that adjudicators may view this decision as a benchmark against which future cases of workplace negligence will be measured.
Together with the broader litigation surrounding the Metron swing stage accident, the Kazenelson case thus serves as an important reminder both of the seriousness with which breaches of health and safety requirements are treated (particularly where fatalities are involved) and of the tragic consequences that can arise when employers and/or supervisors choose to ignore their obligations or disregard violations.
While the Kazenelson case is one of only eight in Canada where an individual or company has been charged under the Bill C-45 additions to the Criminal Code, employers must take proper notice of the significant risk of both financial penalties and criminal liability that may arise from violations of workplace safety requirements.
Please join us for an in-depth discussion of this case and other current legal developments during Littler's bi-monthly Canadian Legal Update webinar series. To register for our next webinar, please visit http://www.littler.com/events/canadian-legal-update-march-2016.
1. Under the Ontario Provincial Offences Act, the act governing procedure for charges laid under the Occupational Health & Safety Act and other provincial legislation, if a person (or corporation) is convicted of an offence and a fine is imposed, a surcharge is automatically payable. According to Ontario Regulation 161/00 under the Provincial Offences Act, for all fines in excess of $1000, the "victim fine surcharge" amounts to 25% of the actual fine.
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