Following a trial in 2015, Vadim Kazenelson was found guilty June 26, 2015 of four counts of criminal negligence causing death and one of criminal negligence causing bodily harm in relation to a Christmas Eve accident at a Toronto apartment building construction project operated by Metron Construction.
During sentencing submissions in late 2015 before the trial judge, the Crown argued a jail sentence of four to five years was appropriate. Defence counsel argued for 12 months to two years in prison.
Justice Ian MacDonnell commented at the time that there is no sentencing precedent that could easily be applied to the case, but he did note it is common that jail time should be imposed.
“This is serious, this is big time,” says Norm Keith, a partner and white-collar crime lawyer with Fasken Martineau DuMoulin LLP who has been watching the case unfold.
While there were a number of different parties involved in the case with varying degrees of responsibility for the construction project, the question some in the legal community are asking is whether Kazenelson was really “criminally” negligent.
“There is no criminal intent, but the threshold for this type of offence is very low — it’s ‘wanton and reckless disregard.’ I don’t see it here — I don’t think he was reckless — he was told ‘don’t worry about it’ by the guy in charge of enforcing it [use of lifelines],” says Keith, who believes there will be grounds for appeal.
But in his June judgment, MacDonnell wrote:
“I am also satisfied that in failing to take reasonable steps in that respect Mr. Kazenelson showed a wanton and reckless disregard for the lives and safety of the workers, and that his failure to act was a marked and substantial departure from what a reasonable supervisor would have done. The risk of serious harm was foreseeable, he had adverted to that risk, and he failed to act. Accordingly, I am satisfied beyond a reasonable doubt that Mr. Kazenelson was criminally negligent.”
On Dec. 24, 2009, Metron workers were on the 14th floor of a high-rise apartment building. At about 4:30 p.m., six workers including the site supervisor climbed onto a swing stage suspended platform to go to the ground level. The swing stage collapsed. Four of the workers fell to their death and a fifth survived the fall but was seriously injured. The sixth worker did not fall because he was stopped by a properly secured lifeline.
It was later discovered only two lifelines were in the area serviced by the swing stage and the swing stage was faulty — the welding was faulty and broken prior to collapse. Toronto Police Services charged Metron and Kazenelson with criminal negligence under the Criminal Code.
On June 15, 2012, Metron pleaded guilty to one count of criminal negligence causing death and became the first company convicted under the Criminal Code as amended by Bill C-45. Metron received a fine of $200,000, which was later increased by the Ontario Court of Appeal to $750,000.
The scaffold rental company Swing N Scaff Inc. also pled guilty to failing to ensure a suspended platform or component was in good condition and paid a $350,000 fine, while a company director was fined $50,000. Only Kazenelson is facing jail time.
“There is no question there is a foul odour in the manner in which the Crown made a cozy deal with the company and the president Mr. Swartz while at the same time being unduly harsh of their treatment of the project manager,” says Keith.
“Why the president and Metron get the cozy deal when Kazenelson gets hung out as the primary person responsible is troubling.”
However, the differences are largely due to Metron’s owner and the scaffolding company being penalized under the Occupational Health and Safety Act and Kazenelson being caught up in penalties under the Criminal Code.
“They are different individuals who had different responsibilities,” says Madeleine Loewenberg, of Loewenberg Psarris Workplace Law LLP in Toronto. “I wouldn’t read too much into the fact one is going to jail and one has only paid a fine.”
With respect to the jail sentence, Loewenberg agrees the case is notable because it is the “most significant” jail term since the enactment of C-45 amendments.
“It’s a real wake-up call to individuals who are both engaged in the construction industry and also those of us who represent individuals in the construction industry because of the interest the courts have had, and clearly continue to take, in matters related to health and safety both under the Criminal Code and Occupational Health and Safety Act,” she says.
In June, MacDonnell said it was reasonable for Kazenelson to have delegated the daily inspection of the swing stage and the responsibility for making sure lifelines were attached. The issue for the court was that on Dec. 24th Kazenelson attended the project and at some point got on the swing stage, realized there were only two lifelines, raised the issue with the site supervisor, and when the site supervisor said ‘don’t worry about it,’ he was content to let it go. Shortly thereafter, the accident happened.
“That sequence of events is what the court was particularly concerned about as it related to the criminal charge facing Mr. Kazenelson,” says Loewenberg.
The entire sequence of events, she adds, including the company’s training record and visits by the Ministry of Labour, was more relevant to a court deciding an issue related to the Occupational Health and Safety Act.
“They are two different statutes with two different burdens of proof and two different sets of sentencing principles,” says Loewenberg.
The lessons to be drawn from the case are multiple for the construction industry.
Loewenberg says wherever individuals are in the hierarchy of a construction project, if they observe a defect in health and safety, they have to take an active step other than acknowledging the defect exists in order to avoid liability.
“In Kazenelson’s case, he raised the fact lifelines were missing and then didn’t do anything further about it, and that is a significant issue. Once he raised it, he had an obligation to take the step to ensure the deficiency was remedied,” she says. “You can delegate it, but it has to be meaningful and active. Construction employers and supervisors will have to take care to ensure the person they are delegating to has the ability to remedy the defect.”