On January 11, 2016 the project manager
for Metron Construction was sentenced to 3 ½ years'
imprisonment for his part in the tragic 2009 accident. On Christmas
Eve 2009, at the conclusion of the work day, six workers boarded
swing stage scaffolding to descend to the ground level of the
construction project. The swing stage was designed to hold the
weight of two workers and as such, had only two harnesses. Four
workers plunged to their death when the swing stage scaffolding
Following a trial, the project manager,
Mr. Vadim Kazenelson, was convicted of four counts of criminal
negligence causing death and one count of criminal negligence
causing bodily harm. In finding Mr. Kazenelson guilty, the Court
concluded that he violated sections 217.1 and 219 of the
Criminal Code. Section 217.1 was added to the Criminal
Code in 2004 by Bill C-45, also known as the "Westray
Law". Section 217.1 provides that everyone who 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
The Court also concluded that Mr.
Kazenelson showed a wanton and reckless disregard for the lives or
safety of other persons in violation of section 219 of the
Criminal Code. To prove a wanton and reckless disregard
the Crown was required to establish that Mr. Kazenelson's
conduct constituted a marked and substantial departure from what a
reasonable person would do in the same circumstances. The Court
noted the following facts in support of its conclusion that the
conduct of Mr. Kazenelson was a marked and substantial departure
from that of a reasonable supervisor: he was aware there was only
two lifelines; he knew of the danger inherent in working on a swing
stage without fall arrest protection; and, he permitted the workers
to board the swing stage with all their tools with no way of
knowing whether it was capable of carrying the weight.
The Court made a number of comments
which assist in understanding how sentences will be imposed for
criminal convictions in relation to workplace accidents. The Court
noted that imprisonment was necessary in the situation to
adequately denounce the conduct and to deter others with authority
over workers from breaching their legal duty set out in section
217.1. With respect to the issue of the appropriate length of the
prison sentence, the Court noted that the penalty must be
proportionate to the gravity of the offence and the degree of
responsibility of the offender. The Court held that the 3 ½
year prison sentence was necessary given the loss of life and to
make it clear that those in positions of authority in dangerous
workplaces have a serious obligation to provide a safe
The case serves as a stark reminder for
supervisors of the potential consequences for negligent conduct.
Further, supervisors are to be reminded that pursuant to section
217.1 they have a duty under the Criminal Code to take all
reasonable steps to prevent bodily harm in the workplace. Mr.
Kazenelson is appealing both the conviction and the sentence.
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