On January 11, 2016 the project manager for Metron Construction was sentenced to 3 ½ years’ imprisonment for his part in the tragic 2009 accident. On Christmas Eve 2009, at the conclusion of the work day, six workers boarded swing stage scaffolding to descend to the ground level of the construction project. The swing stage was designed to hold the weight of two workers and as such, had only two harnesses. Four workers plunged to their death when the swing stage scaffolding collapsed.
Following a trial, the project manager, Mr. Vadim Kazenelson, was convicted of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. In finding Mr. Kazenelson guilty, the Court concluded that he violated sections 217.1 and 219 of the Criminal Code. Section 217.1 was added to the Criminal Code in 2004 by Bill C-45, also known as the “Westray Law”. Section 217.1 provides that everyone who has the authority to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm.
The Court also concluded that Mr. Kazenelson showed a wanton and reckless disregard for the lives or safety of other persons in violation of section 219 of the Criminal Code. To prove a wanton and reckless disregard the Crown was required to establish that Mr. Kazenelson’s conduct constituted a marked and substantial departure from what a reasonable person would do in the same circumstances. The Court noted the following facts in support of its conclusion that the conduct of Mr. Kazenelson was a marked and substantial departure from that of a reasonable supervisor: he was aware there was only two lifelines; he knew of the danger inherent in working on a swing stage without fall arrest protection; and, he permitted the workers to board the swing stage with all their tools with no way of knowing whether it was capable of carrying the weight.
The Court made a number of comments which assist in understanding how sentences will be imposed for criminal convictions in relation to workplace accidents. The Court noted that imprisonment was necessary in the situation to adequately denounce the conduct and to deter others with authority over workers from breaching their legal duty set out in section 217.1. With respect to the issue of the appropriate length of the prison sentence, the Court noted that the penalty must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Court held that the 3 ½ year prison sentence was necessary given the loss of life and to make it clear that those in positions of authority in dangerous workplaces have a serious obligation to provide a safe workplace.
The case serves as a stark reminder for supervisors of the potential consequences for negligent conduct. Further, supervisors are to be reminded that pursuant to section 217.1 they have a duty under the Criminal Code to take all reasonable steps to prevent bodily harm in the workplace. Mr. Kazenelson is appealing both the conviction and the sentence.
