Background

The tragic saga of Metron Construction Incorporated, which spurred a comprehensive review of the Ontario OHS system, began on Christmas Eve of 2009.

Metron was hired to restore concrete balconies on 2 high-rise buildings in Toronto’s west end, known as the Kipling Project. On Christmas Eve 2009, a crew of 6 men was on a swing stage, repairing a balcony 14 stories above the ground. Only two lifelines (i.e. harnesses with lanyards that served as fall protection equipment) were available.  The swing stage collapsed.  Only one worker, who was wearing a properly secured lifeline, survived uninjured.  The worker wearing the second lifeline was not properly secured, and was critically injured.  The 4 men not wearing any fall protection were killed by the 14-storey fall.

In convicting Metron under the Bill C-45 provisions of the Criminal Code in 2012, the court determined that a significant cause of the swing stage’s collapse was its defective design and the fact that it was unable to withstand the weight of the 6 workers; however, the court also found that the workers would have survived the collapse if they had been properly secured by lifelines.  The deaths and injuries were, therefore, preventable.

As a result of the accident, Vadim Kazenelson, Metron’s project manager for the Kipling Project, was charged with 4 counts of criminal negligence causing death and 1 count of criminal negligence causing bodily harm.

Although Mr. Kazenelson pleaded not guilty, the court rendered a guilty verdict in respect of all 5 counts on June 26, 2015.

With Mr. Kazenelson’s conviction, he joins 4 other parties who have also been found guilty of offences arising from the Christmas Eve tragedy: (i) Metron itself, (ii) one of Metron’s corporate directors, (iii) Swing N Scaff Inc. (the company that supplied the swing stage platform), and (iv) one of Swing N Scaff Inc.’s corporate directors.  The fines imposed as against those 4 parties already totals $1,240,000.

Mr. Kazenelson’s sentence remains to be determined.

Criminal trial of Mr. Kazenelson

In succeeding in proving the 5 counts against Mr. Kazenelson, the Crown satisfied the court beyond a reasonable doubt that Mr. Kazenelson was criminally negligent pursuant to s. 217.1 of the Criminal Code, which prescribes liability in the event of an accused showing wanton or reckless disregard for the lives or safety of others in (a) doing anything; or, (b) omitting to do anything that it is his duty to do.

In particular, the Crown relied on part (b), pursuant to which it was required to prove the following:

• Kazenelson’s omission constituted a failure to take reasonable steps to prevent bodily harm to the workers;

• Kazenelson’s wanton or reckless disregard for safety constituted a marked and substantial departure from the conduct expected of a reasonable person in the circumstances; and

• Kazenelson adverted to an obvious and serious safety risk, or gave no thought to that risk and the need to proceed carefully.

The defence conceded that Mr. Kazenelson had the authority to direct how the Metron workers did their work at the time of the accident, and thus, that he was under a legal duty to take reasonable steps to prevent bodily harm to them.

In determining that Mr. Kazenelson had failed to take such reasonable steps, the Court found guidance in the provisions of the Occupational Health and Safety Act (OHSA) and the Construction Regulation. In that regard, the Court held that although establishing a breach of the OHSA or the Construction Regulation does not by itself establish a breach of the duty imposed by s. 217.1, the OHSA can provide useful assistance in identifying what steps were reasonable to expect of Mr. Kazenelson.  Further to that, the Court reasoned that, in sum, the provisions of OHSA, the Construction Regulation and industry standards demonstrate that a fundamental rule for the prevention of workplace injuries is that anyone working on a swing stage must be protected by a fall arrest system.

The Court went on to confirm that the employer’s safety records were of limited relevance to Mr. Kazenelson’s defence to the charges of criminal negligence.  This is in contrast to the context of defending against regulatory charges under the OHSA, where employers generally rely heavily on safety records.  In that regard, the Court’s analysis of Mr. Kazenelson’s breach of his duty to protect the workers’ safety focused on his conduct on the day of the accident.  The Court held that any adequacy or inadequacy in the training or supervision that Mr. Kazenelson had previously provided to the workers had nothing to do with why those 6 workers got onto the swing stage without a sufficient number of lifelines being properly in place.

The Court held that it was not Mr. Kazenelson’s duty to personally inspect the swing stages every morning, and it was not unreasonable to entrust that duty to the site supervisor, Fayzullo Fazilov (or to any other competent workers, given the hierarchy of authority and the division of responsibility on the Kipling Project); however, the Court found that (a) Mr. Kazenelson had no information as to the weight capacity of the stage, and (b) before it collapsed, he became aware that there were only 2 lifelines available for the 6 workers. In fact, Mr. Kazenelson had even boarded the swing stage himself without fall protection.

Although Mr. Kazenelson questioned Mr. Fazilov about the absence of lifelines, and Mr. Fazilov told him not to worry, the Court rejected the defence’s submission that Mr. Kazenelson had discharged his duty under s. 217.1 by presenting that enquiry to Mr. Fazilov. Rather, as soon as Mr. Kazenelson became aware that fall protection was only available for 2 workers, he came under a duty to take steps to rectify the situation. The Court found that in failing to act, Mr. Kazenelson showed wanton and reckless disregard for the lives and safety of the workers, and that constituted a marked and substantial departure from the conduct expected of a reasonable person in the circumstances.  Thus, his omissions constituted criminal negligence.

Essentially, Mr. Kazenelson saw the danger inherent in working without lifelines, and he failed to act despite an obligation to do so.

Inasmuch as negligent conduct becomes criminal only where it causes death or bodily harm, the defence submitted that the requisite causation was lacking because the workers who boarded the stage were aware of the need for fall protection and were not directed or pressured by Mr. Kazenelson to work without such protection.  The Court rejected that proposition, and found that Mr. Kazenelson’s failure to take steps to ensure that each of the workers who boarded the stage had a lifeline was a significant contributing cause of the harm that resulted.

That finding is consistent with the spirit of the “internal responsibility system” in OHS, where the legal duties and responsibilities of employers, supervisors and workers overlap and complement each other, and with the well-established proposition that workers are not solely responsible for their safety.

Mr. Kazenelson’s sentencing is scheduled for October 16, 2015.

Significance of case

Mr. Kazenelson’s sentencing will be an important point of closure for those involved in this tragic case, and will carry considerable significance for all Canadian employers and supervisors.  The Metron saga has been keenly followed by many employment lawyers, health and safety professionals and other observers as the case in which the Bill C-45 amendments to the Criminal Code seem to have finally found their “teeth”; it will be interesting to see whether that spirit is reflected in Mr. Kazenelson’s sentencing.

In any event, this decision and the upcoming sentencing will represent significant additions to the sparse body of case-law that has grown around the Bill C-45 amendments, which were enacted in 2004 to expand the scope of criminal liability for both corporations and individual supervisors in the OHS context.  In the 11 years that Bill C-45 has been in force, only a handful of criminal negligence prosecutions have proceeded under the amendments that it introduced.  Mr. Kazenelson’s case will no doubt become a point of reference for future Bill C-45 cases in which imprisonment represents a potential outcome.

We will provide an update on the sentencing as it becomes available.

Phanath Im

About the Author: Toronto Employment Lawyer Phanath Im practices in all areas of employment law. She is a former Ministry of Labour prosecutor with special expertise in occupational health and safety (OHS) matters. Phanath’s OHS practice includes defending workplace accident-related regulatory charges, accident response, reporting and investigation, and managing OHS inspections.