January 11, 2016
It has been more than six years since Christmas Eve 2009, when five men fell thirteen stories from a swing stage at a Toronto apartment building. Four of the men were killed and the lone survivor was very seriously injured. The accident, which occurred on a project undertaken by Metron Construction, was one of the most tragic workplace accidents in Ontario history and spurred the Ontario government to conduct an extensive review of the occupational health and safety system in the province. Criminal and Occupational Health and Safety Act charges were laid against Metron Construction, its president, and Vadim Kazenelson – Metron’s Project Manager. The company that provided the swing stage, Swing N Scaff Inc., and its principal were charged under the Occupational Health and Safety Act.
Of all of these charges, the only matter that has proceeded to trial are the criminal negligence charges laid against Mr. Kazenelson (his Occupational Health and Safety Act charges have not yet been dealt with). On June 26, 2015, Mr. Kazenelson was convicted of four counts of criminal negligence causing death and one charge of criminal negligence causing bodily harm (R. v. Kazenelson, 2015 ONSC 3639 (CanLII)). Please see our October 2015 OHS & Workers’ Compensation Advisor for our analysis of the decision.
At the October 16, 2015 sentencing hearing, the Crown argued that a penalty of four to five years in jail was appropriate; while Mr. Kazenelson’s position was that a jail sentence of one to two years was a fit sentence. In support of his position, Mr. Kazenelson argued that his attention to, and enforcement of, health and safety standards on the project, and the defective manner in which the involved swing stage had been manufactured, significantly reduced his moral blameworthiness. The court reserved its decision until today.
After considering the matter, the court sentenced Mr. Kazenelson to three and a half years in jail. In delivering its decision, the court found that Mr. Kazenelson was morally blameworthy because he knew that there was not enough fall protection for all of the workers and that the involved swing stage did not have a plate or markings detailing its load bearing capacity.
For two principal reasons, the sentence imposed on Mr. Kazenelson will likely be influential in future cases involving individuals convicted of criminal negligence for a workplace accident. The first is because of the tragic consequences involved. The accident was one of the worst workplace accidents in Ontario history which means the penalty imposed today provides guidance on a fit penalty involving very significant harm. Sentences in subsequent cases will likely be measured against the penalty imposed on Mr. Kazenelson.
The second reason is that there are few cases involving individuals convicted of criminal negligence for a workplace accident since the Criminal Code was amended in 2004. The amendments require an individual who “undertakes, or has the authority, to direct how another person does work or performs a task” to take “reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task”. The comments, analysis, and approach of the court in Mr. Kazenelson’s case will add meaningfully to the limited existing case law.
Mr. Kazenelson has appealed his conviction and is seeking bail, which would permit his release pending the outcome of his appeal. It is also possible that Mr. Kazenelson will appeal the sentence imposed on him today. We will continue to follow the case and provide updates and analysis as it progresses.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
For more information on new developments in Workplace Law, please refer to our website at: http://www.mathewsdinsdale.com/news-events/in-a-flash/
Click here for downloadable version.