On January 11, 2016, the Ontario Superior Court sent a strong message to managers and supervisors working at construction sites and other potentially dangerous workplaces. Vadim Kazenelson, a project manager who was responsible for overseeing a construction crew, was sentenced to 3.5 years in prison for his role in a fatal workplace accident. The Court concluded that a significant term of imprisonment was necessary "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."1
Criminal Liability for Workplace Accidents
Workplace accidents and incidents, including those involving injury or death, are usually investigated by provincial occupational health and safety officials and prosecuted under provincial workplace safety legislation. However, in addition to the provincial framework, the Criminal Code also allows for criminal prosecutions for workplace accidents.2 In particular, section 217.1 imposes a broad legal duty on everyone who has the authority to direct how another person does work to take reasonable steps to prevent bodily harm to that person. This means that corporate representatives, senior officers, managers, supervisors — and anyone else who "directs work" — all have a positive duty to take reasonable steps to keep the people they are responsible for safe.
It is not enough to simply be aware of applicable occupational health and safety obligations.
Section 217.1 was introduced to the Criminal Code in 2004 following the Westray Mine disaster, along with other related provisions setting out when persons and companies are considered parties to a workplace criminal offence. These provisions have been used sparingly since 2004. However, there are two notable convictions arising out of the same 2009 incident which indicate an increased willingness by courts to hold organizations and individuals criminally liable and sentence them to jail terms for their failure to take reasonable steps to prevent bodily harm to others in the workplace.
The Fatal Workplace Accident That Led to Criminal Convictions
In the fall of 2009, Metron Construction Incorporated ("Metron") was completing balcony repairs on two apartment buildings in Toronto. Vadim Kazenelson had been retained by Metron as the project manager. As Christmas approached, the project fell behind schedule. Mr. Kazenelson worked to increase the pace of the work on the project in order to meet a year-end deadline.
On Christmas Eve, seven workers (including Mr. Kazenelson) were returning to the ground on a swing stage at the end of the day. The swing stage was only equipped with two lifelines because only two workers would typically have been working on the swing stage at a time. However, due to the increased pace of work, all seven people boarded the swing stage to ride down together. Mr. Kazenelson had asked about the shortage of lifelines earlier in the day but the project foreman told him not to worry about it. Only one worker attached himself to a lifeline as they descended. Unexpectedly, the swing stage collapsed and the workers who were not attached to a lifeline plunged towards the ground. Four workers died and one survived with serious injuries.
The president of Metron pled guilty to four charges under Ontario's Occupational Health and Safety Act. He was also personally fined $90,000. Metron also pled guilty to one charge of criminal negligence for failing to take reasonable steps to prevent bodily harm to its employees. The Court imposed a fine of $200,000, which was three times more than Metron's net earnings in the previous year.3 Following an appeal, Metron's fine was increased to $750,000.
Project Manager Held Personally Liable for Negligent Acts
The Crown also laid criminal charges against Metron's project manager, Mr. Kazenelson, who was ultimately convicted of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. The Court sentenced him to three and a half years imprisonment.
Importantly, the Court found that Mr. Kazenelson was a good project manager. He was "conscientious and safety-minded," he was a "caring member of his community," and he was a good father, mentor and role model. He was also very serious about workplace safety — one worker even testified that if Mr. Kazenelson found anyone working without their safety equipment, he would have fired them. At no time did Mr. Kazenelson encourage or coerce his workers to work under dangerous conditions.
So why was Mr. Kazenelson given a jail sentence? The tragic accident on Christmas Eve was the result of a typically safety-conscious project manager's single decision not to enforce safety standards in an attempt to meet a looming project deadline. Mr. Kazenelson simply attempted to increase the pace of the work and he cut corners on the safety program to do so. Seven people were using the swing stage instead of the usual two, but there were only two lifelines available. Mr. Kazenelson could have ordered the work to stop until additional lifelines were made available. Instead, he chose to proceed with the work and did nothing to rectify the situation. Even though this was only a momentary lapse in judgment, the Court held that a significant term of imprisonment was necessary to denounce his conduct and deter others with authority over workers in potentially dangerous workplaces from breaching their duties to prevent bodily harm to those people working for them. The Court found that Mr. Kazenelson was aware of the risk of proceeding without enough lifelines, but he "decided that it was in Metron's interest to take a chance. As a consequence of his decision to put Metron's interests ahead of his duty to protect the safety of workers under his authority, four men died and a fifth suffered grievous harm."4
The Metron and Kazenelson cases demonstrate that organizations, senior employees and even front-line managers may be subject to criminal liability for failing to abide by occupational health and safety requirements and failing to take reasonable steps to keep people safe from bodily injury. A criminal conviction could result in a hefty fine or even a prison sentence.
It is not enough to simply be aware of applicable occupational health and safety obligations. All organizations and individuals who direct the work of others must ensure and enforce a safe workplace at all times. Construction projects, well sites and other potentially dangerous workplaces can sometimes be quite hectic, and managers and supervisors may be tempted to cut corners. However, Kazenelson demonstrates that urgency cannot trump safety. Allowing others to work unsafely could not only result in tragedy, it could also land you in jail.
NOTE: Mr. Kazenelson's convictions are currently under appeal and he is out on bail pending that appeal. It will be interesting to read the Ontario Court of Appeal's decision. Stay tuned...
1 R v Kazenelson, 2016 ONSC 25 at para 45 [Kazenelson]..
2 Criminal Code, RSC 1985, c C-46, s 22.1, 22.2, and 217.1.
3 R v Metron Construction Corp, 2013 ONCA 541.
4 Kazenelson at para 33.
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