This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.
In a previous post, we discussed the case of Vadim Kazenelson, the Project Manager convicted on five counts of criminal negligence under s. 217.1 and 220 of the Criminal Code when five workers employed by Metron Construction Inc. fell more than 100 feet to the ground after the swing stage they were working on suddenly collapsed. Four of the workers died and one was seriously injured because they were not attached to a lifeline. The Project Manager was aware that there were an insufficient number of lifelines on the swing stage. On January 11, 2016, the Project Manager was sentenced to 3½ years imprisonment on each of the five counts to be served concurrently.
The sentencing decision of Justice MacDonnell of the Ontario Superior Court of Justice (Criminal Division) in R. v. Kazenelson, 2016 ONSC 25 is an important one because it marks the first reported conviction and sentencing decision involving a breach of s. 217.1 of the Criminal Code, the duty placed on persons directing the work of others to take reasonable steps to prevent bodily harm to the persons performing the work.
The Court in R. v. Kazenelson concluded that the Project Manager’s breach of duty was more than a momentary lapse. He was aware that the workers were working 100 feet or more above the ground without lifelines and his duty to rectify this dangerous situation was “fully engaged” and remained engaged for some time. In particular, the Court focused on the fact that the Project Manager “adverted to the risk, weighed it against Metron’s interest in keeping the work going, and decided to take a chance”, concluding that this was a seriously aggravating factor.
Although Mr. Kazenelson was described as “hardworking, devoted to his family, and involved in his community…”, the sentence was crafted to deter similar actions in the future. Justice MacDonnell held that a significant term of imprisonment was necessary to reflect the tragic 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.”
The conviction and sentencing of the Project Manager in R v Kazenelson brings this tragic case of workplace negligence to completion. Apart from Mr. Kazenelson, the following parties in the Metron saga have also been found guilty of offences:
(i) Metron Construction Inc. – plead guilty to one count of criminal negligence causing death under the Criminal Code and was ultimately fined $750,000;
(ii) Metron’s President Joel Swartz – plead guilty under Ontario’s Occupational Health and Safety Act and was fined $90,000;
(iii) Swing N Staff Inc. (the company that provided the defective swing stage) – plead guilty to failing to ensure that a suspended platform and/or a component supplied to Metron Construction Inc. was in good condition as required by Ontario’s Occupational Health and Safety Act, and was fined $350,000 (plus a victim surcharge); and
(iv) Patrick Deschamps, a director of Swing N Staff Inc., plead guilty to failing to take all reasonable care to ensure a suspended platform was in good condition and that a platform weighing more than 525 kilograms was designed by a professional engineer in accordance with good engineering practice. He was fined $25,000 for each count, for a total fine of $50,000 (plus a victim surcharge) under Ontario’s Occupational Health and Safety Act.
Although the facts in this incident are exceptional, the sentence in R v Kazenelson and the foregoing cases highlights the fact that courts will impose significant sanctions for criminal negligence in the workplace context.