A case of criminal negligence

When a seventh person attempted to get on the swing stage, it collapsed, breaking in half, sending five men plunging thirteen stories to the ground below, killing four of the workers, while the surviving worker suffered life-altering injuries. Kazenelson held onto one of the unused lifelines and climbed back onto a balcony.

Here are the facts in the case as outlined in R. v. Kazenelson, 2015 ONSC 477 (Canlii).

This work required the design and installation of a custom swing stage allowing workers to work on two balconies at once, and the supplier Swing ‘N’ Scaff did not provide the constructor (Metron) or the project manager (Kazenelson) with capacity info for the swing stage. Therefore, Kazenelson was unaware of the capacity.

Examination of the swing stage revealed that some of the welds were cracked and the design was faulty. It was the site supervisor responsibility (deceased) to ensure the equipment was inspected each morning. The project manager was responsible for ensuring the performance of this activity.

O.Reg 213/91 Construction Projects makes it clear that each worker requires an independent lifeline. The day of the event, Kazenelson was aware that only two lifelines were in use, and although the concern was raised with the site supervisor, no action was taken. Kazenelson had the responsibility and authority to ensure that rules were adhered to.

These facts are not unlike many provincial health and safety cases we see, so why was Kazenelson convicted under the Criminal Code?

The charge of criminal negligence can be established where an individual in doing anything; or, omitting to do anything that is his duty to do, shows wanton or reckless disregard for the lives or safety of others. In this case, the Crown was required to prove that the omission constituted a failure to take reasonable steps to prevent bodily harm to the workers, and his disregard for safety constituted a substantial departure from the conduct expected from a reasonable person in the circumstances. The Crown was also required to prove that Kazenelson was aware of an obvious safety risk or gave no consideration to risks he may have been aware of and willfully chose to proceed without caution.

The court found that Kazenelson was bound by section 217.1 of the Criminal Code and that he should not have allowed the workers to board the swing stage without the required number of lifelines. Failure to ensure their use was a breach of provincial legislation, the training the worker’s had received, basic industry standards and therefore a breach of section 217.1. The courts also found that not knowing the capacity of the swing stage and allowing the workers to board with only two lifelines was a demonstration of wanton or reckless disregard for the lives and safety of the workers and this also marked a substantial departure from what a reasonable supervisor would have been expected to do in the circumstances. The courts also found that as a result of Kazenelson questioning the site supervisor about the number of lifelines in use, he was aware of the risk, aware of the danger, and allowed the activity to continue.

These details satisfied the courts beyond a reasonable doubt, that Kazenelson knew of the danger, neglected to act, and therefore, is criminally negligent. In January 2016, Kazenelson was sentenced to three and a half years in prison. Whether you agree or disagree with the sentence, this is a precedent, and employers need to stand up and take notice.

Employers must have competent management in place and a system where safety is integrated into all aspects of business, where it is constantly measured and evaluated, and substandard acts and conditions are not tolerated.