Northern Exposure

Project manager convicted of criminal negligence

by Norm Keith and Shane D. Todd

As another reminder of the importance of health and safety in all workplaces all across Canada, we report on the continuing legal saga involving the December 2009 fatalities at Metron Construction.

On June 26, 2015, Vadim Kazenelson, the project manager overseeing a construction project for Metron, was found guilty of five counts of criminal negligence in relation to a quadruple fatality on the project. As we approach the end of the Metron saga, we look back on the accident, the charges that flowed from it, and the impact on health and safety advice for employers.

Accident

On December 24, 2009, Metron workers were repairing concrete balconies on the 14th floor of a high-rise building. Six workers, including the supervisor, climbed onto a suspended work platform called a swing stage to travel to the ground. The two swing stage components broke apart like the opening of a drawbridge. Four workers fell to their death, a fifth worker was seriously injured, and the sixth worker’s fall was stopped by a lifeline.

An investigation revealed that three deceased workers, including the supervisor, had recently consumed marijuana. What’s more, there were only two lifelines in the area. It was also discovered that the supplier had not properly tested the swing stage or obtained approval of its design by an engineer. The welding was inconsistently done and inadequate, and the welds were cracked and broken prior to the collapse. Finally, when it was delivered to the project, the swing stage had no manual, markings, serial numbers, or labels regarding maximum capacity.

Charges

The Ontario Ministry of Labour charged Metron, its president, Swing N Scaff Inc. (the swing stage supplier), and its director with a combined 61 offenses under the Ontario Occupational Health and Safety Act. As we outlined earlier, all pleaded guilty and were fined.

The Toronto Police Services also charged Metron and Kazenelson with criminal negligence under the Criminal Code. Metron pleaded guilty and was sentenced to a fine of $200,000. That fine was increased to $750,000 on appeal. Kazenelson pleaded not guilty and proceeded to trial. Following a trial, Justice Ian MacDonnell delivered his verdict that Kazenelson was guilty on all five counts. Kazenelson is scheduled to be sentenced in October. Given the number and severity of the convictions, it is likely he will serve a custodial sentence.

Implications for employers

This case is a powerful example that a health and safety system must comply with regulatory and criminal standards. Metron had at least a partially functioning health and safety system. In the facts submitted to the court, the prosecutors agreed that Metron had taken a number of steps to ensure worker safety, including requiring engineering inspection and re-certification of roof anchors, providing training and orientation to workers, and conducting periodic safety meetings and weekly inspections. But this was insufficient to defend the charges.

This underscores that there must be an operational imperative on safety that is fulfilled each day. An organization must not only establish a health and safety system, but it also must engage in regular and documented monitoring of the system and take documented remedial steps to correct any deficiencies. This applies to employers in all provinces.

It is also clear from this decision that supervisor actions may expose an organization to criminal liability. It is imperative that organizations hire qualified supervisors and provide them with training. Organizations should also undertake regular documented supervisor audits to ensure that they are discharging their health and safety obligations.

Finally, the recent amendments to the Criminal Code mean greater risk of criminal liability for companies and executives who fail to take every reasonable precaution to prevent bodily harm at the workplace. Metron is a clear example of how quickly this liability may materialize and how serious the consequences can be.

Employers throughout the country should take this as a reminder to conduct a thorough review of their health and safety systems to identify and close, in a documented manner, any deficiencies that may expose the organization to liability.