Fatal Work Accident: an Ontario Court Sentences a Project Manager to 3 ½ Years in Prison

On January 11, 2016, the Ontario Superior Court sentenced a project manager to 3 ½ years in prison after he was convicted of criminal negligence following the death of four workers in 2009.¹

Facts

On December 24, 2009, Metron Construction Incorporated was carrying out repairs to the balconies on a multi-storey building. A swing stage was used to access the balconies. When it was time to leave the site, six workers boarded the swing stage from the 13^th floor, and it collapsed several seconds later. Four workers died and a fifth was seriously injured.

The authorities charged both Metron Construction Incorporated and the project manager, Vadim Kazenelson, with criminal negligence.

In July 2012, Metron Construction Incorporated pleaded guilty to one count of criminal negligence causing death. The business was originally ordered to pay a fine of $200,000, which was increased to $750,000 by the Ontario Court of Appeal. Fines totalling $90,000 were also imposed under the Ontario Occupational Health and Safety Act.

On June 26, 2015, the project manager was found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.²

MacDonnell J. of the Ontario Superior Court found that Mr. Kazenelson was a person who has the authority to direct how another person does work within the meaning of section 217.1 of the Criminal Code and that, as a result, he had a duty to take reasonable steps to prevent bodily harm to that person, even if there was someone supervising the workers on site.

The Court also concluded that he showed wanton or reckless disregard for the lives or safety of the workers:

• He knew that none of the workers present was wearing fall arrest protection.

• He allowed the workers to board the swing stage, even though he knew they were not protected in the event of a fall.

The judge acknowledged that a breach of an OHS regulation does not automatically constitute a breach of section 217.1 of the Criminal Code; it can, however, assist in identifying the steps a person subject to section 217.1 of the Criminal Code must take to prevent workplace injuries.

In its sentencing decision, the Court remarked that a fairly lengthy prison term was necessary in order to remind those in authority in potentially dangerous workplaces of their duty to take all reasonable steps to ensure worker safety.

Conclusion

It will be very interesting to see how this file develops, because the conviction has been appealed.

This matter serves as a reminder of how important it is for managers and supervisors to pay particular attention to occupational health and safety rules, and that the consequences can be very significant if such rules are breached.