The judge’s reasons for sending Metron Construction’s project manager, Vadim Kazenelson, to jail for criminal negligence are now available here.

In our post of January 11th, we reported that the judge had sentenced Mr. Kazenelson to 3 1/2 years in prison.

Mr. Justice MacDonnell’s reasons for imposing the 3 1/2 jail term are as follows:

-Although Mr. Kazenelson was of “good character prior to the accident and has continued to be of good character in the six years since”, and he was remorseful and unlikely to commit further criminal offences of any kind, the offences and their consequences were very serious: four men lost their lives and a fifth suffered devastating and life-altering injuries.

-As the Crown and Mr. Kazenelson agreed, the principles of denunciation and general deterrence (sending a message to others, to prevent similar crimes in future) required a term of imprisonment.

-Mr. Kazenelson’s breach of duty was “more than a momentary lapse”.  He was aware that the workers were working 100 feet or more above the ground without lifelines.  “His duty to take steps to rectify this dangerous situation was fully engaged, and it remained engaged for some time” (he was with the workers for at least 30 minutes prior to the accident).

-He not only did nothing, 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.

-Mr. Kazenelson “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.

-“A consideration of all of the circumstances can lead only to the conclusion that a significant term of imprisonment is necessary to reflect the terrible consequences of the offences and to make it unequivocally clear that persons in positions of authority in potentially dangerous workplaces have a serious obligation to take all reasonable steps to ensure that those who arrive for work in the morning will make it safely back to their homes and families at the end of the day.”

In the end, Mr. Kazenelson, now a 40 year old father of three young sons, described as “honest, hardworking, conscientious and safety-minded”, “a good and devoted father to his children” and “unquestionably a person of good character” who was providing support to his mother who resides overseas, was sentenced to 3 1/2 years in prison.  Mr. Kazenelson has appealed his conviction for criminal negligence, so it would appear that the case is not over yet.

R. v Vadim Kazenelson, 2016 ONSC 25 (CanLII)

Vadim Kazenelson, the project manager for Metron Construction, was sentenced today to 3½ years in prison for criminal negligence.

This is the longest-ever jail sentence handed down for criminal negligence under the “Bill C-45” amendments to the Criminal Code in 2004 that made it easier to convict workplace supervisors for criminal negligence.

The charges relate to the tragic accident on Christmas Eve 2009 in which four workers – who were not wearing fall-arrest equipment – fell to their death after a construction swing stage, on which they were working, failed.

CBC News is reporting that “during sentencing, Justice Ian MacDonnell said Kazenelson was aware that fall protections were not in place, but still allowed his workers to board a swing stage that collapsed, causing five workers to plummet to the ground.”

Mr. Kazenelson has appealed his criminal negligence conviction and has been granted bail pending that appeal.

According to CBC News, the prosecutor was seeking a jail sentence of four or five years, whereas the defence was suggesting a one- or two-year jail sentence.

CBC News reports that Justice MacDonnell said that Mr. Kazenelson put the company’s interest — in particular getting the work finished ahead of a December 31 deadline — before the safety of workers when the decision was made to continue work without safety harnesses.

The June 26, 2015 decision in which Mr. Kazenelson was found guilty of criminal negligence, may be accessed here.

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)

The project manager who supervised the four workers who died after a swing stage scaffold collapsed on Christmas Eve, 2009, has been found guilty on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.  Vadim Kazenelson received the verdict today.

The court has not yet imposed his sentence.

Five parties have now been found guilty of safety-related offences as a result of this tragic accident: Metron Construction Corporation, a director of Metron, Swing N Scaff Inc., a director of Swing N Scaff Inc. (all of which received fines), and Mr. Kazenelson.

As we previously reported, the total of safety fines imposed for the December 24, 2009 swing stage collapse fatalities is $1,240,000.

According to the Ministry of Labour, at least six workers were on the swing stage suspended 13 floors above the ground when it broke apart in the middle and collapsed. Ministry of Labour investigators found that the welds on the platform were inadequate. Tragically, four workers died.

Swing N Scaff Inc., the company that supplied the swing stage platform (a suspended work platform), had previously pleaded guilty to the Occupational Health and Safety Act offence of failing to ensure that a suspended platform and/or a component supplied to Metron Construction Corporation was in good condition.  It was fined $350,000.00.

The director of Swing N Scaff Inc. had previously pleaded guilty to failing to take all reasonable care to ensure a suspended platform was in good condition and that a platform weighing more than 525 kilograms was designed by a professional engineer in accordance with good engineering practice.  He was fined $50,000.00 under the Ontario Occupational Health and Safety Act.

Previously, Metron Construction Corporation was fined $750,000.00 for criminal negligence under the “Bill C-45″ amendments to the Criminal Code; that amount was increased on appeal from the $200,000.00 fine set by the trial justice.

A director of Metron Construction Corporation was previously fined $90,000.00 under the Ontario Occupational Health and Safety Act for failing to ensure that non-English speaking workers received written material in their native languages and failing to ensure that training records were maintained; failing to ensure that the swing stage was not defective or hazardous (by allowing it to be used without having received any of the required information with respect to its capacity and use); and failing to ensure that the swing stage was not loaded in excess of the load that the platform was designed and constructed to bear.

A supervisor’s violation of the Occupational Health and Safety Act can ground a criminal negligence charge against him, an Ontario preliminary inquiry judge has decided, sending the criminal charges to trial.  We reported on this case in January; the court’s reasons for decision were recently made available.

The criminal negligence charge was laid against the Project Supervisor of Metron Construction after five workers fell 13 stories to their deaths when a suspended scaffold collapsed on Christmas Eve, 2009.

The Crown and the defence agreed that in order for the Project Supervisor to be guilty of criminal negligence, the Crown must prove that, by act or omission, he failed to perform a duty, and that if the failure was an omission, the failure was “wanton or reckless”.

The court decided that evidence of the Project Supervisor’s failure to ensure that all workers were tied to lifelines was sufficient proof of criminal negligence causing death that the charges should proceed to trial.  The court found that the duty to ensure that workers were connected to lifelines was set out in the Occupational Health and Safety Act and in the rules of the Construction Safety Association of Ontario.

The Project Supervisor’s consent, tacit or otherwise, to at least 5 workers using the swing stage with their equipment to ascend or descend 14 or more stories without the protection of lifelines was a marked and substantial departure from reasonable prudence.

The judge stated that safety regulations “do not establish criminal standards”, meaning a violation of a safety regulation will not automatically ground a criminal negligence charge; that will be of some comfort to employers and supervisors.  However, in this case, there was evidence of a “substantial departure from the norm” and “wanton disregard”, factors that effectively could turn the breach of the Occupational Health and Safety Act  duty into criminal negligence.

We will provide further updates on this important and high-profile case as they become available.

R. v. Kazenelson, 2013 CarswellOnt 1765 (Ontario Court of Justice)

An Ontario judge has decided that criminal charges against a Project Manager should go to trial.

The charges against Vadim Kazenelson, Project Manager for Metron Construction, arise from the tragic Christmas Eve 2009 incident in which four workers on a suspended scaffold fell 14 stories to their deaths.

In July 2012, Metron Construction pleaded guilty to charges, arising out of the same incident, of criminal negligence causing death and was fined $200,000.00 plus a $30,000.00 Victim Fine Surcharge.  Metron’s owner, Joel Swartz, pleaded guilty to four charges under the Ontario Occupational Health and Safety Act and was personally fined $90,000.00 plus a Victim Fine Surcharge of $22,500.00.  Our July 17, 2012 post on the fines against Metron and Swartz can be found here.

Labour groups have increasingly been calling for criminal enforcement, under the so-called Bill C-45, against companies and supervisors who commit serious safety breaches. The Ontario Federation of Labour, for instance, has what it calls its “Kill a Worker, Go to Jail” campaign.

Stay tuned for further updates.