Richard Wong, Allan Wells, Lauren Harper, Eric Hendry
Mar 1, 2016
*This resource was updated April 26, 2018 to reflect the January 30, 2018 Court of Appeal sentencing appeal decision.
In December of 2009, Metron Construction Corporation (Metron) was repairing exterior balconies on the 14th floor of a high-rise apartment building in Toronto. On Christmas Eve of that year, an overloaded swing stage, a form of suspended platform, carrying six workers including Vadim Kazenelson, the project manager, and the project foreman, collapsed resulting in the death of four workers and severely injuring a fifth. There had only been two lifelines on the swing stage at the time.
Metron, the swing stage manufacturer, and their respective corporate directors were each subject to various convictions and fines under the Criminal Code (Code) and the Ontario Occupational Health and Safety Act (OHSA). On January 11, 2016, Mr. Kazenelson was sentenced to 3½ years in prison, to be served concurrently, on each of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm as a result of the swing stage collapse. Mr. Kazenelson became the first individual to be convicted and sentenced to prison for criminal negligence causing death due to his failure to his duty to take reasonable steps to ensure safety under s. 217.1 of the Code.
Section 217.1 of the Code states that everyone who directs, or has the authority to direct, how another person performs work has a duty to take reasonable steps to prevent bodily harm arising from the work. This section was added to the Code through Bill C-45, also known as the “Westray Bill”, as a result of the 1992 Westray coal mining disaster that killed 26 miners in Nova Scotia. For purposes of the prosecution, this reasonable person standard was interpreted to be the reasonable supervisor, as the accused was Metron’s project manager.
The court recognized that Mr. Kazenelson’s sentence should be proportionate to the gravity of the offence and to his degree of blameworthiness. The defence argued he was less blameworthy due to two “independent intervening acts”. First, the workers knew there were not enough lifelines and chose to work anyway and, second, the swing stage - which was a newly modified design of the manufacturer that had not been validated by load testing - was a significant contributing cause of the accident. However, the court declined to sever the chain of causation and ultimately found that Mr. Kazenelson demonstrated the requisite wanton and reckless disregard constituting a marked and substantial departure from the conduct of a reasonable person in the circumstances. In doing so, the court noted, among other things, that the OHSA and its Construction Projects Regulation contained clear requirements; that Mr. Kazenelson had been trained by the Construction Safety Association of Ontario on fall arrest procedures and had become an instructor to teach others; and that he knew on that day that there were insufficient lifelines for the number of people and their tools, while having no information on the weight-bearing capacity of the swing stage.
As a result, the court found that Mr. Kazenelson averted to the obvious and serious risk created by the circumstances, and his failure to act under those circumstances was not merely a “momentary lapse”:
A consideration of all of the circumstances can lead only to the conclusion that 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.
3 ½ years in prison was ultimately determined to be the appropriate sentence to denounce his conduct and deter others from committing similar offences.
Court of Appeal
On January 30, 2018, approximately two years after the trial decision, Mr. Kazenelson’s conviction and sentence were upheld on appeal by the Ontario Court of Appeal. In a unanimous decision, the Court of Appeal held that the trial judge’s reasons for conviction and the sentence were clear and firmly rooted in the facts.
Mr. Kazenelson had argued that the trial verdict stretched the concept of criminal negligence too far and that his conduct in the circumstances, and in light of the conduct of the workers, fell short of the high degree of fault required of him in this case. However, the Court of Appeal rejected these arguments and held that the trial judge properly took all contextual factors into account, including the actions of the workers and the question of foreseeability of the swing stage’s collapse. Mr. Kazenelson’s argument that the trial judge misapprehended certain competing facts was similarly rejected.
Finally, the Court of Appeal upheld Mr. Kazenelson’s 3½-year concurrent prison sentences, holding that the trial judge appropriately considered the potential “contributory negligence” of the workers and the fact that Mr. Kazenelson was a first-time offender when determining his blameworthiness. In doing so, the Court of Appeal also reviewed the trial judge’s identification of the “seriously aggravating circumstance” of having prioritized schedule over safety. On this important point, the Court of Appeal noted that Mr. Kazenelson’s sentence was appropriate even in the absence of that aggravating circumstance.
Charges and convictions against others
To fully consider the broader implications of the worker fatalities and injuries on December 24, 2009, it is important to recall that charges under the Code and OHSA were also laid against the construction company, the swing stage supplier, and their respective directors, and that the provisions of the Code and OHSA are applied separately and operate independently. The charges under the Code were laid by Toronto Police, while charges under OHSA were laid by the Ministry of Labour.
Metron pled guilty to one count of criminal negligence causing death based on the acts and omissions of the site foreman who was determined to be a “senior officer” for purposes of the Code. At the sentencing hearing, Metron was fined $200,000; however, the Crown appealed the amount, arguing it was unfit for the circumstances, and the Ontario Court of Appeal increased the fine to $750,000. Joel Swartz, the director of Metron, pled guilty to four offences under the OHSA for failing, as a director, to take reasonable care to ensure compliance with various aspects of the Construction Projects Regulation (such as giving written instructions on fall protection in the native language of those who could not read English, recording worker names and dates of having received fall arrest training and instructions, and to avoid using/overloading a defective swing stage), and was consequently fined $90,000 plus a 25% victim surcharge fee. Mr. Swartz was also initially charged under the Code but those charges were later withdrawn.
Swing N’Scaff Inc., the supplier that provided the faulty swing stage, pled guilty under the OHSA to failing to ensure the platform was in good condition and was fined $350,000. Among other issues, the stage did not indicate the maximum load carrying capacity. Patrick Deschamps, a Swing N’Scaff director, pled guilty to failing to take reasonable care to ensure the platform was in good condition and designed by a professional engineer in accordance with good engineering practice. Mr. Deschamps was fined $50,000 under the OHSA. Swing N’Scaff was initially charged under the Code but those charges were also later withdrawn.
Industry developments since Metron
Following the accident, the Ontario Ministry of Labour appointed an Expert Advisory Panel on Occupational Safety chaired by former Ontario cabinet secretary Tony Dean to perform a comprehensive review of workplace health and safety in Ontario. The panel recommended 46 changes to Ontario’s health and safety legislation resulting in Bill 160, the Occupational Health and Safety Statute Law Amendment Act, 2011. Introduced as containing “the most significant changes to Ontario’s workplace health and safety prevention system in 30 years”, it came into force on June 1, 2011 and included among other things the creation of a Chief Prevention Officer role to spearhead improvements to worker health and safety, creating numerous safety programs and initiatives aimed at preventing accidents like Metron, and establishing the Ontario Ministry of Labour as the lead for injury and illness prevention, a responsibility transferred from the Workplace Safety and Insurance Board.
Under its “Safe at Work Ontario” program, the Ministry of Labour has developed a detailed and focused system of compliance and verification activities relating to health and safety, including developing annual sector-specific plans on the construction, health care, industrial, and mining industries, increased the number of inspection blitzes throughout the province, and reviewed issues of potential concern such as health and safety of new and young workers. In addition, the Ministry of Labour has recently further amended the Construction Projects Regulation relating to fall protection (among other things) under O. Reg. 345/15 published December 12, 2015 that reflects recommendations from the Provincial Labour-Management Health and Safety Committee.
In addition, some organizations have started requiring safety certifications for all contractors working on their projects to ensure their policies and procedures meet provincial health and safety standards. For example, the Toronto Transit Commission (TTC) recently announced the phased implementation of the Certificate of Recognition (COR™) safety program issued by the Infrastructure Health and Safety Association to supplement its current requirements for its construction projects, and will require all contractors bidding on TTC projects to maintain such certification in good standing for the duration of the contract.
These and other efforts of the government and industries have raised the bar in a collective effort to prevent injury or death in the workplace. In fact, these very efforts were referenced by Mr. Kazenelson’s appeal counsel as evidence of deterrence in the construction industry as a result of this incident, although that did not persuade the Court of Appeal. As a result, the Metron trial decisions, reinforced by the Court of Appeal, remain a stark reminder of the legal obligations on management in relation to workplace safety and the potential liability faced by companies, their directors, and individuals directing the work of others under the Code and occupational health and safety legislation.