When Vadim Kazenelson was sentenced to an unprecedented three and a half years in jail for his role in a construction site tragedy, employers across Ontario collectively took notice.
The conviction against Kazenelson arose from the events of December 24, 2009, when the scaffolding on which six men were working collapsed, killing four of the men and severely injuring the fifth. It followed the criminal conviction of the company overseeing the construction project, Metron Construction, and the provincial offences conviction of Joel Swartz, the director of Metron Construction.
Kazenelson was charged with criminal negligence under section 219(1) of the Criminal Code, which states that “everyone is criminally negligent who… in omitting to do anything that it has a duty to do, shows wanton or reckless disregard for the lives or safety of other persons.” The prosecution relied on the workplace-specific duty set out in the criminal negligence provisions of the Criminal Code, which requires that anyone who has the authority to direct how another person does work or performs a task “take reasonable steps to prevent bodily harm to that person or any other person arising from that work or task.”
Kazenelson was the project supervisor for Metron Construction and was onsite on December 24, 2009, when the accident occurred. The sixth worker on the platform, the only one properly attached to a fall arrest system called a “lifeline”, was uninjured.
The Court found that Kazenelson had the authority to direct the workers employed by Metron Construction and that he failed to take reasonable steps to prevent bodily harm to the workers because he failed to ensure that the workers were using the appropriate safety equipment. In particular, the Court found that Kazenelson was aware that there were insufficient lifelines for the six workers on the scaffolding, yet allowed his workers to board. In so doing, Kazenelson failed to take reasonable steps to prevent bodily harm to the workers. The Court further found that Kazenelson acted with wanton or reckless disregard for the lives or safety of the workers because he knew that the scaffolding was not fail safe. He had training on this specific issue, but still allowed the workers to board the scaffolding.
The Kazenelson decision is significant because it marks the first ever Ontario criminal negligence conviction against an individual for failure to discharge his legal duty to a worker. This conviction, coupled with the Metron Construction conviction where the company was fined $750,000, show how the workplace-specific duties set out in the criminal negligence provisions of the Criminal Code are applied, and make clear that Ontario criminal courts take events such as the Metron Construction tragedy seriously.
Importantly, the Courts are willing to blame individuals for breaches of workplace duties and classify such breaches as criminal acts that merit jail time. Employers should ensure that they understand their occupational health and safety obligations, and stress the importance of compliance to their employees.
The potential consequences of the failure to abide by these duties are evident in the Kazenelson case: injury, death and imprisonment.
