This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.
At a recent MLT workshop on Occupational Health and Safety Law, we told you about the unfortunate case of R v Metron Construction Inc., where four workers were killed and one was seriously injured on Christmas Eve at a Toronto construction site when a suspended swing stage scaffolding they were standing on collapsed. Three of the fatally injured workers including the supervisor had marijuana in their system. Only one worker was secured with fall arrest protection. The company pled guilty to criminal negligence causing death and ultimately received a $750,000 fine.
Metron Construction’s Project Manager, Vadim Kazenelson, was also recently found guilty under s. 217.1 of the Criminal Code on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm: R. v. Kazenelson, 2015 ONSC 3639. His sentence is expected on October 16, 2015.
The Court found that everyone working on a swing stage must be protected from the danger of a fall. Shortly before the accident, the Project Manager noticed there was a shortage of lifelines on the swing stage and asked the supervisor “where the lifelines were?” The foreman told him “not to worry”. The Project Manager said and did nothing else in relation to the lifelines. Seven people boarded the swing stage, including the Project Manager and supervisor. When the swing stage collapsed, the Project Manager was holding on to the single lifeline secured to a worker and managed to scramble to safety on a nearby balcony during the collapse. The worker wearing the lifeline also survived. The other five workers were either injured or killed.
The Project Manager’s main defence was that he discharged his duty to ensure the safety of the workers by recognizing and asking the supervisor about the deficiency in the number of lifelines. He also argued that swing stage’s design was defective and that the workers were trained, experienced and made their own decisions to get onto the swing stage despite the absence of lifelines. The Court rejected all of these defences.
The Court found that a reasonable project manager would have contemplated the risk of equipment failure as part of the risk involved in failing to provide lifelines for workers on a suspended swing stage. In this case, the project manager was aware that there were an insufficient number of lifelines available. As such, he was under a duty to rectify the situation. The Court found that he did not discharge his duty simply by asking the supervisor about the lifelines. Rather, his failure to take any steps to ensure that the workers who boarded the swing stage had lifelines was a significant contributing cause of their injuries. His actions constituted “wanton and reckless disregard for lives and safety of his workers” and were criminally negligent under s. 217.1 of the Criminal Code.
The facts in the Metron series of cases are somewhat exceptional, but the Court’s ruling in the Project Manager’s case suggests that supervisors and project managers need to take reasonable steps after noticing safety deficiencies in the workplace. Merely raising an issue with a subordinate, without doing anything more to rectify it, may not be enough to satisfy the duty to take reasonable steps to prevent harm to a worker.
Stay tuned for further updates from MLT on the Project Manager’s sentence and for notice of future presentations on OH&S law.