As you may recall, in the fall of 2009, Metron Construction was engaged in repairing the concrete balconies of two 18-story apartment buildings at 2737 and 2757 Kipling Avenue in Toronto. The work involved chipping away loose or deteriorated concrete, installing wooden forms and pouring fresh concrete to restore the balconies to their original state. Metron’s workers gained access to the balconies by means of motorized swing stages suspended from the roofs of the buildings.
As Christmas approached, the project was behind schedule. The work had been completed at 2737 Kipling but much was left to be done at 2757. Metron had a $50,000 bonus riding on its ability to complete the work by the end of the year.
On the morning of December 24, 2009, some workers boarded a swing stage at ground level at 2757 Kipling with their foreman. A sixth worker either accompanied them on the stage or joined them later. The stage was a modular model, made up of four ten-foot platforms bracketed together. It was long enough to permit the workers to work on two balconies at a time, and on December 24 it was suspended over the balconies for the apartments numbered 05 and 06 on each floor. For that reason, the location where it was set up was referred to as “drop 5/6.”
The workers who boarded the swing stage that morning had to begin pouring concrete on the 18th floor and to work their way down the building. As they finished pouring on each floor, they boarded the stage and lowered themselves to the floor below. By the end of the day, at about 4:30 p.m., they had completed pouring on the balconies on the 13th floor.
Metron used a fall arrest system comprised of a full body harness with a lanyard that attached to a vertical lifeline that was anchored to an independent fixed support on the roof of the building. Only one worker at a time could use a separate lifeline.
However, there were two lifelines in place for the five or six workers who were using the swing stage in drop 5/6.
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. That left one lifeline for all of the remaining workers. None of them attached themselves to it. 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 hurtling toward the ground, 100 feet below. Although one of them 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 were laid against the company and the project manager directing the work. These cases were dealt with separately.
The Crown could prove that the project manager was criminally negligent. The Crown was able to prove that the project manager’s criminal negligence caused the deaths and bodily harm of the workers.
Therefore, last June, the project manager, Vadim Kazenelson, was found guilty on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.
At his sentencing hearing on October 16, 2015, Kazenelson apologized:
I want to begin by apologizing for the accident on Dec. 24, 2009 and my role at the scene,” he said. I am going to live all my life with that pain…All the men on the job site, they are good workers and good men. I’m sorry for their families and all those who suffered.
The judge stated that he would be imposing a term of incarceration, but at this time, the length of incarceration is unknown.
On one hand, the Crown prosecutor argued that the sentence should be four to five years in prison. On the other hand, Kazenelson argued that the sentence should be one to two years.
Kazenelson’s sentence is expected to be delivered on January 11, 2016. We will keep you posted.
What can employers take from this case?
As can be seen from this case, courts are taking the section 217.1 Criminal Code responsibilities seriously and forcing employers to pay the price in the case of noncompliance. It is not good enough to raise defenses similar to the ones raised by the project manager:
The project manager argued:
- The quality of performance was not relevant in a criminal matter.
- There was no way that he could know that there were only two lifelines before the accident because he was never on the swing stage before the accident.
- By the time that he learned there were only two lifelines, he was assured by his foreman not to worry when he inquired.
- He did not fail to do anything that breached a duty to take reasonable steps to prevent harm, and there was nothing that amounted to reckless disregard for the lives and safety of the workers.
- There were intervening acts that disrupted the chain of causation-first, the design of the swing stage was so defective that from the time it left the factory it was “a ticking time bomb.” It could not reasonably have been foreseen that after less than two months of use it was ready to collapse under its own weight. Second, the five workers who fell were trained and experienced and they made the decision to get onto the stage notwithstanding the absence of lifelines, without any direction or pressure from him.
No matter the excuse, there is a duty to ensure the safety of workers. 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.
All employers and project managers are best to remember how unimpressed the court was with the failure to act in this situation:
Once Mr. Kazenelson [the project manager] became aware that fall protection was only available for a maximum of two persons, he was under a duty to take steps to rectify the situation. He not only did nothing, he permitted all six workers to board the stage together with their tools, and he did so in circumstances where he had no information with respect to the capacity of the stage to safely bear the weight to which it was being subjected. Mr. Kazenelson’s failure to take any steps to prevent the workers from using the swing stage in those circumstances constituted a clear breach of his duty under s. 217.1. I am satisfied beyond a reasonable doubt that in failing to act, he showed wanton and reckless disregard for the lives and safety of the workers and thus that his omissions constituted criminal negligence.”
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