The Court of Appeal for Ontario has upheld the criminal negligence ("Bill C-45") conviction and 3 1/2 year jail term imposed on Vadim Kazenelson, the Project Manager for Metron Construction. The charges arose from an incident in which four workers fell to their death and a fifth had permanent injuries after a swing stage collapsed. None of those workers was attached to a lifeline.
You can view our previous posts on this case here.
The trial judge had, in sentencing Mr. Kazenelson to 3 1/2 years in jail, stated that Mr. Kazenelson not only did nothing to rectify the dangerous situation, he permitted all six workers to board the swing stage together with their tools; he did so in circumstances where he had no information with respect to the capacity of the swing stage to safely bear the weight of the workers and their tools; and he "adverted to the risk, weighed it against Metron's interest in keeping the work going, and decided to take a chance. That is a seriously aggravating circumstance in relation to the moral blameworthiness of his conduct." Mr. Kazenelson was aware that there was a deadline for completing the work and that his boss was intent on meeting it.
The Court of Appeal for Ontario rejected Mr. Kazenelson's arguments that he should not have been found guilty of criminal negligence. Mr. Kazenelson's argument that the "approach of the trial judge stretches penal negligence too far" given that this was the first conviction of an individual supervisor under section 217.1 of the Criminal Code (which section was added by Bill C-45 in 2004) was rejected. The appeal court also rejected the argument that Mr. Kazenelson did not show "a wanton and reckless disregard for the workers".
With respect to the jail sentence, the appeal court rejected the argument that Mr. Kazenelson's jail term should be shortened because the other workers were "contributorily negligent"; the court agreed with the trial judge's reasoning that such argument "would ignore the reality that a worker's acceptance of dangerous working conditions is not always a truly voluntary choice. It would also tend to undermine the purpose of the duty imposed by s. 217.1 of the Criminal Code, which is to impose a legal obligation in relation to workplace safety on management." The appeal court also rejected the argument that, because Mr. Kazenelson was a first-time offender, the trial judge placed too much emphasis on "general deterrence".
This case has, and will continue to, send a message to employers and supervisors that criminal negligence charges – in addition to Occupational Health and Safety Act charges – are a real possibility after serious workplace accidents, particularly accidents involving fatalities or serious permanent injuries.
R. v. Kazenelson, 2018 ONCA 77 (CanLII)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
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