“… [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 …” – R. v Vadim Kazenelson, 2016 ONSC 25 (CanLII), para. 45
These scathing words were written by Justice MacDonnell in the January 11, 2016, sentencing decision in R. v Vadim Kazenelson. In this decision, Kazenelson, a construction project manager, was sentenced to 3.5 years in prison for five convictions of criminal negligence relating to the collapse of a swing stage that led to the death of four construction workers in Ontario. Kazenelson had earlier been found guilty of committing these offenses following a trial.
With this sentencing decision, the tragic saga of a quadruple fatality on a construction site on Christmas Eve 2009 has finally come to legal conclusion.
In August 2009, Metron Construction was retained to repair concrete balconies on two high-rise apartments. As was its normal practice, Metron hired a project manager and a site supervisor to oversee the project. Kazenelson was retained by Metron as its project manager. He owned and operated his own construction company and, according to reports, came highly recommended as an experienced and qualified project manager.
On December 24, 2009, a number of Metron workers were working on the 14th floor of one of the high-rise apartment buildings. At approximately 4:30 p.m., six workers—including the site supervisor—climbed onto a swing stage (a suspended work platform) to travel to the ground. The swing stage collapsed. Four workers fell to their death, a fifth worker survived the fall but was seriously injured, and the sixth worker did not fall because he was stopped by a properly secured lifeline.
A post-incident investigation revealed that three of the deceased workers—including the site supervisor—had levels of marijuana in their systems consistent with recent consumption, and there were only two lifelines in the area serviced by the swing stage. It was also discovered that the design and assembly of the swing stage was faulty. The manufacturer/supplier had not properly tested it or obtained the approval of an engineer in relation to its design.
As designed, the swing stage was not safe for even two workers to use. The welding was inconsistently done and inadequate, and the welds were already cracked and broken prior to the swing stage’s collapse. Finally, when it was delivered to the construction project, the swing stage had no manual, markings, serial numbers, or labels regarding maximum capacity.
On June 15, 2012, Metron pleaded guilty to one count of criminal negligence causing death. By doing so, Metron became the first Ontario corporation convicted of criminal negligence under Canada’s 2004 amendments to its Criminal Code. Metron was subsequently sentenced to a fine of $200,000. However, the Crown—which had requested a fine of $1 million—appealed the sentence to the Ontario Court of Appeal.
The court of appeal found that the sentencing judge had erred by relying on sentencing case law under the Ontario Occupational Health and Safety Act and that he had failed to appreciate the higher degree of “moral blameworthiness and gravity associated” with a criminal conviction.
Further, the sentencing judge had erred by treating Metron’s ability to pay as prerequisite to the imposition of a fine. On this point, the court of appeal noted that the economic viability of an organization may be a factor in sentencing if the organization fills an important place in the market or is a significant employer. However, the prospect of fining a company into bankruptcy should not be precluded in an appropriate case. After reviewing the necessary sentencing factors, the court of appeal concluded that the original fine was unfit and imposed a fine of $750,000 on Metron.
Lessons for employers
The 2004 amendments to Canada’s Criminal Code (often referred to as the Bill C-45 amendments) have meant greater risk of criminal liability for organizations and senior executives who fail to take every reasonable precaution to prevent bodily harm at the workplace. The Metron saga is a clear example of how quickly this liability may materialize and how serious the consequences can be for employers.
One of the most important points to note from the Metron court decisions is that it is clearly not sufficient for an employer to simply set up a health and safety system and expect that by doing so it will be able to avoid regulatory or criminal liability following a workplace accident. In fact, Metron appears to have had at least a partially functioning health and safety system at the time of the accident.
Instead, employers would be well-advised to go several steps further and conduct an in-depth and thorough review of their health and safety system to identify and close, in a documented manner, any deficiencies that may expose the organization to liability.