Scaffolding fatalities lead to 3.5-year jail term

‘Sends very clear message to employers, supervisors’: Lawyer
By Sabrina Nanji
|Canadian HR Reporter|Last Updated: 02/05/2016

An Ontario judge has sentenced a project manager to three-and-a-half years in prison after a deadly scaffolding collapse in Toronto on Christmas Eve in 2009. 


Vadim Kazenelson, a project manager at Metron Construction, was found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm in the Jan. 11 decision. 


The landmark sentencing is precedent-setting, said Nadine Zacks, an associate lawyer who focuses on labour and employment at Hicks Morley’s Toronto office. 


“It goes beyond what we’ve seen the courts do in the past when it comes to health and safety offences, in terms of the jail time that was imposed,” she said. 


“It sends a very clear message to employers and supervisors and individuals with responsibility for the health and safety of workers that there are very serious individual consequences — that they can be personally held liable.”


There have been eight cases where employers have been charged under the revised Criminal Code (which was amended in 2004 after Bill C-45 was passed and imposed serious penalties for occupational health and safety violations resulting in death or injury), according to the Canadian Centre for Occupational Health and Safety.


The decision was applauded by the Ontario Federation of Labour (OFL), which launched its “Kill a Worker, Go to Jail” campaign in the wake of the incident. 


The judge sent a strong message to employers, said OFL president Chris Buckley.


“Bosses cannot expect that it’s all about money, this is not about profits any longer. This is about health and safety. This is about the lives of workers,” he said. “Those workers left their families that day to earn a living and then died at the end of that day. It will not be tolerated any longer.” 


The incident was preventable and the onus was on those who knew about the hazards and went ahead with the work anyway, said Buckley.


“This should not have happened. The minute they knew there were not enough lifelines on that worksite, it should have been shut down,” he said. “Justice has been served and the judge was fair. I think employers now will get the message after the ruling.”


Background

The deaths occurred when the swing stage the employees were working on suddenly collapsed and they fell more than 100 feet. There were only two lifelines available and three of the four workers, including a supervisor, had marijuana in their system.


Sixty-one charges were laid under the Occupational Health and Safety Act (OHSA).  And in 2010, criminal charges were laid against the company and Kazenelson was charged with criminal negligence causing bodily harm and four counts of criminal negligence causing death. 


“None of those workers was attached to a lifeline as required by both the law and industry practice,” said Ontario Superior Court of Justice Judge Ian MacDonnell in his decision.


“Kazenelson, Metron’s project manager, was with the workers at the time of the collapse. He had taken no steps to ensure that lifelines were available for the workers and that they were used.”


While Kazenelson’s breach of duty was not part of an ongoing course of negligent conduct in relation to fall protection, he was aware of how the men were working, said MacDonnell. 


“From the moment he joined them, (Kazenelson) was aware that they were working 100 feet or more above the ground without lifelines. He not only did nothing, he permitted all six workers to board the stage together with their tools, and he did so in circumstances where he had no information with respect to the capacity of the stage to safely bear the weight to which it was being subjected.”


Jail time required

The ruling serves as a stark reminder to employers about health and safety obligations, said Zacks. 


“The courts certainly seem more open to jail time — it was something that was unheard of in the past. So I do think that it is representative of a turning point for health and safety in terms of jail time but, also, we’re seeing higher fines and more severe penalties overall.” 


The takeaway, therefore, is employers should close off any deficiencies and ensure all their people — managers, supervisors and the like — are aware of the health and safety consequences, not just for the company and its top brass, but for employees, she said. 


“Supervisors and those responsible for the health and safety of workers need to know that it’s not just a matter of ‘Well, you may have breached some health and safety requirement and the company will be found liable’ but they in fact also have personal responsibility to workers.” 


During his sentencing, Kazenelson apologized for what happened and for the role he played. He said he would never forget the day and live the rest of his life with the pain of what happened. 


And his lawyer argued for a lighter sentence, between 12 months and two years, part of which would be served as a probationary period during which Kazenelson would go out into the community and speak about workplace health and safety.


But such a short sentence “would be inadequate to satisfy the paramount objectives of denunciation and deterrence,” said MacDonnell.


“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.”

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