Over the past couple of years, I have written about the story regarding the project manager involved at the work site where Metron Construction Incorporated (Metron) was repairing 18-story apartment buildings using a swing stage. The charges arose from an incident where five workers employed by Metron fell more than 100 feet to the ground when the swing stage on which they were working suddenly collapsed. Some developments in this matter have occurred.
As you may recall, and as discussed here and here, in the autumn of 2009, Metron was engaged in repairing the concrete balconies of two 18-story apartment buildings at 2737 and 2757 Kipling Avenue in Toronto. On the morning of December 24, 2009, some workers boarded a swing stage at ground level at 2757 Kipling with their foreman. Once the workers finished pouring concrete in the balconies on the 13th floor, they loaded their tools onto the swing stage and climbed aboard for the descent to ground level. When one of the workers boarded, he attached his lanyard to one of the two lifelines. This meant that there was one lifeline remaining for the rest of the workers. None of them attached themselves to the lifeline.
The motors for the stage were engaged and the stage began to descend. Within a matter of seconds, the brackets connecting the two centre platforms failed, causing the platforms to separate and the stage to collapse and sending five workers falling 100 feet down to the ground. Although one worker survived the fall, he sustained serious injuries; the other four men were killed. The only worker tied off to a lifeline was left suspended in mid-air until he was pulled to safety onto a balcony.
Charges of criminal negligence causing death and causing bodily harm
Consequently, charges were laid against Metron and the project manager directing the work, Vadim Kazenelson. These cases were dealt with separately. With respect to the matter involving the project manager, Kazenelson was found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.
He was subsequently sentenced to a jail term of 3.5 years. In January 2016, the judge stated:
“In my opinion, the sentence that would be proportionate to the gravity of Mr. Kazenelson’s offences and his degree of responsibility is a term of incarceration of 3½ years imprisonment on each count. Those sentences will be served concurrently with one another.”
In response, Kazenelson appealed the sentencing decision.
Decision of the Court of Appeal in January 2018
On January 30, 2018, the Ontario Court of Appeal heard Kazenelson’s appeal of the sentencing decision.
The Court of Appeal noted that the trial judge made some critical findings regarding Kazenelson. First, he had the authority to direct the workers who were on the swing stage. Second, he became aware, well in advance of the swing stage collapse, that there were only two lifelines available on the swing stage for the six workers working their way down the building from the top floor. And third, knowing that fall protection was available for a maximum of two persons, he not only did nothing to rectify that situation, but he also permitted all six workers to board the swing stage with their tools in circumstances where he had no information concerning the weight capacity of the swing stage.
Court of Appeal reviewed sections 219 and 217.1, of the Criminal Code.
Section 219 of the Criminal Code states that everyone is criminally negligent who, in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. Section 217.1 of the Criminal Code creates a duty upon everyone who 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.
In this case, the Court of Appeal stated that the trial judge concluded Kazenelson’s failure to take any steps to prevent the workers from boarding the swing stage in the above-noted circumstances constituted a breach of his duty under section 217.1 of the Criminal Code and showed a wanton and reckless disregard for their lives and safety, thus amounting to criminal negligence. In addition, the judge concluded that Kazenelson’s failure to ensure that each worker had a lifeline was a significant contributing cause of the harm that resulted. Accordingly, the trial judge convicted Kazenelson of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm, and sentenced him to three and a half years on each count to be served concurrently.
Ultimately, the Court of Appeal dismissed Kazenelson’s appeal, finding that the trial judge’s reasons for the conviction and sentence were clear and the chain of reasoning was rooted firmly in his findings of fact. The trial judge made no legal or other errors. In fact, the Court of Appeal noted that Kazenelson largely repeated arguments considered and dismissed by the trial judge. The Court of Appeal rejected Kazenelson’s arguments that the trial judge misapplied test for criminal negligence, the workers were contributorily negligent, and the trial judge created a sentence that was too severe and overemphasized general deterrence.
To that end, the prison sentence of 3.5 years was upheld.
What can employers take from this case?
As can be seen from this case, and as mentioned in previous posts, courts are taking responsibilities set out in sections 217.1 and 219 of the Criminal Code very seriously. It is simply insufficient to argue that the project manager could not have known that there were only two lifelines, or that failing to act does not constitute reckless disregard for the life and safety of workers. Similarly, it is insufficient to attribute the situation to defective equipment, to blame the workers, or to insist that this type of situation is not foreseeable.
The court emphasized that failures to act are serious omissions that carry serious consequences. This case sends a strong message that there is a duty to ensure the safety of workers, and failing to take reasonable steps to prevent harm that is reasonably foreseeable will be viewed as a reckless disregard for a worker’s life and safety.
Therefore, in order to avoid this kind of tragedy, employers are recommended to be proactive and revisit their health and safety policies to ensure that they are complying with current requirements under the Ontario Occupational Health and Safety Act and regulations.
Additionally, it is important for employers to train their project managers and all workers on those policies. Not only is it important for employers to comply in order to avoid fatal tragedies, but it also necessary in order to avoid serious fines under the Occupational Health and Safety Act. In fact, there have been some developments in response to this case; there has been a review of the health and safety legislation by an expert panel, changes proposed to create a more robust health and safety prevention system in Ontario, and a regime that creates stiffer penalties for noncompliance.