Safety First and Last: Kazenelson conviction sends a strong message
By Jeff Thorne
On Dec. 24, 2009, there was a catastrophic event that ultimately led to changes to the health and safety framework in Ontario. Six workers, including the supervisor, were on the 14th floor of a high-rise apartment building. At approximately 4:30 p.m., the site supervisor climbed onto the swing stage to descend to ground level.
By Jeff Thorne
The swing stage collapsed with four of the workers falling to their death and a fifth surviving the fall suffering serious life-altering injuries. The sixth worker did not fall because he was properly secured by a lifeline.
It was later discovered that only two lifelines were supplied for the workers and the swing stage was faulty and improperly constructed. The welding was faulty and broken prior to the collapse. Toronto Police Services charged Metron and the project manager Vadim Kazenelson with criminal negligence under the Criminal Code of Canada.
Skipping forward to 2012, Metron, the project owner, was ultimately fined $750,000 under the Criminal Code of Canada. Joel Swartz, a director of Metron, was fined $90,000 under the Occupational Safety Act plus a victim surcharge of $22,500. Criminal charges against Swartz were withdrawn by the Crown. But what about Kazenelson?
In 2015, Vadim Kazenelson the project manager was found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. The Crown proved that he was aware of obvious safety risks or gave no consideration to risks he may have been aware of and willfully chose to proceed without caution. Kazenelson allowed the workers to board the swing stage with tools, without knowing the capacity of the swing stage, without harnesses, and without the required number of lifelines. A clear demonstration of wanton and reckless disregard. Failure to identify the capacity of the swing stage and ensure the required number of lifelines were present and used was a breach of provincial legislation; a breach of the training the workers had received; a breach of basic industry standards; and therefore a breach of section 217.1. of the Criminal Code of Canada. He knew better.
In July 2016, Kazenelson was sentenced to 3.5 years for each offence to be served concurrently. The judge presiding over the case stated, “A significant term of imprisonment is necessary to reflect the terrible consequences of the case.” Now don’t get me started on whether I think the sentence was reasonable.
Up until the end of 2017, Kazenelson was out on bail awaiting his appeal. On Jan. 30, 2018, the Ontario Court of Appeal denied Kazenelson’s appeal of the three-and-a-half-year sentence. This decision is huge, a game changer! The appeal court justice, a three-judge panel that heard the appeal, ruled specifically that the trial judge had not erred during the trial and had determined the case correctly.
They stated that “The trial judge’s reasons for conviction and sentence are clear and the chain of reasoning is rooted firmly in his findings of fact. He made no legal or other errors. The appellant largely repeated arguments considered and dismissed by the trial judge.”
The Ontario Court of Appeal confirmed the sentence of three-and-a-half-years in prison. Justice Peter Lauwers wrote, “the desire to complete the work that day led the appellant to compromise his duties.” This statement alone should plant a seed in the mind of employers and supervisors that safety should never take a back seat.
This landmark decision sends a strong message. When there is at-risk behaviour and foreseeable risks where the risk of harm has not been mitigated, or a willfully blind eye has been turned, the courts will take this seriously.
We are almost nine years into this. Families and lives have been changed forever. New standards have been created to improve working at heights safety, but it will take a combined effort between employers, supervisors and workers to move forward on the right path to prevent similar incidents in the future.
Jeff Thorne is manager of training and consulting for Occupational Safety Group in London, Ont.