Workers' acceptance of dangerous working conditions not voluntary: Court
The Court of Appeal for Ontario has upheld the criminal negligence (Bill C-45) conviction and three-and-one-half-year jail term imposed on Vadim Kazenelson, the Project Manager for Metron Construction. The charges arose from an incident in which four workers fell to their death and a fifth had permanent injuries after a swing stage collapsed. None of those workers was attached to a lifeline.
The trial judge had, in sentencing Kazenelson to three-and-one-half years in jail, stated that Kazenelson not only did nothing to rectify the dangerous situation, he permitted all six workers to board the swing stage together with their tools; he did so in circumstances where he had no information with respect to the capacity of the swing stage to safely bear the weight of the workers and their tools; and he "adverted to the risk, weighed it against Metron’s interest in keeping the work going, and decided to take a chance. That is a seriously aggravating circumstance in relation to the moral blameworthiness of his conduct." Kazenelson was aware that there was a deadline for completing the work and that his boss was intent on meeting it.
The Court of Appeal for Ontario rejected Kazenelson’s arguments that he should not have been found guilty of criminal negligence. Kazenelson’s argument that the "approach of the trial judge stretches penal negligence too far" given that this was the first conviction of an individual supervisor under s. 217.1 of the Criminal Code (which section was added by Bill C-45 in 2004) was rejected. The appeal court also rejected the argument that Kazenelson did not show "a wanton and reckless disregard for the workers."
With respect to the jail sentence, the appeal court rejected the argument that Kazenelson’s jail term should be shortened because the other workers were "contributorily negligent;" the court agreed with the trial judge’s reasoning that such argument "would ignore the reality that a worker’s acceptance of dangerous working conditions is not always a truly voluntary choice. It would also tend to undermine the purpose of the duty imposed by s. 217.1 of the Criminal Code, which is to impose a legal obligation in relation to workplace safety on management." The appeal court also rejected the argument that, because Kazenelson was a first-time offender, the trial judge placed too much emphasis on "general deterrence."
This case has, and will continue to, send a message to employers and supervisors that criminal negligence charges – in addition to Occupational Health and Safety Act charges – are a real possibility after serious workplace accidents, particularly accidents involving fatalities or serious permanent injuries.
For more information see:
R. v. Kazenelson, 2018 CarswellOnt 891 (Ont. C.A.).
Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or firstname.lastname@example.org. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.