On January 20, 2018, the Court of Appeal for Ontario released its decision in the Appeal of Vadim Kazenelson (“Kazenelson”) both his conviction and sentence appeal. Kazenelson was the Project Superintendent/Manager for the Metron Construction Incorporated (“Metron”) project in Toronto that went terribly wrong on December 24, 2009. Tragically four workers died, and one was seriously injured, when two swing stage scaffolds broke apart, and five out of the six workers who were not attached to a lifeline that was anchored to the building, fell to the ground, over 100 feet below. Kazenelson had been at the project at the time of the accident and allegedly aware of workers not using fall arrest lanyards at the time of the accident.
Kazenelson was prosecuted for five counts of criminal negligence under the Criminal Code Amendments, often referred to as the Bill C-45 or Westray Mine Disaster Amendments to the Criminal Code. Kazenelson argued at trial that he was not guilty because he was not the direct supervisor of the crew, he had ensured that the workers had been properly trained and provided with fall arrest protective equipment, that he did raise the concern of workers not being provided with lanyards, when he was on site prior to the accident.
The Quebec Superior Court recently released a decision with broad implications for corporate employers, owners, managers and supervisors across Canada. In R. c. Fournier, Justice Villemure held that an individual’s contravention of provincial health and safety legislation was an “unlawful act”, under section s. 222(5)(a) of the Criminal Code (“Code”) and therefore a basis for committal to trial under a criminal charge of manslaughter. This case involved the owner of a small construction company, who is now personally being charged with manslaughter arising from a workplace fatality. This is the first decision of its kind in Canada.
The decision must not only have been a shock for Mr. Fournier, the owner of a small construction firm, who had lost a worker in a tragic workplace accident, but also for criminal lawyers across Canada, since this is the first time this issue has been considered by the courts. It will be even more shocking for individuals, supervisors and employers, and others, bound to comply with provincial, strict liability health and safety laws. Since there were 852 workplace fatalities in Canada in 2015 – there were 852 potential opportunities for a contravention of health and safety laws to give rise to criminal manslaughter charges.
What Happened in this Case
According to the Superior Court’s decision the facts of the case include the following:
- Lévesque and Mr. Fournier were working together at a construction project replacing in-ground sewer and water main lines;
- The Quebec Safety Code was applicable to the excavation that was taking place;
- Fournier and Mr. Lévesque were both working in an excavation on the day of the fatality;
- The walls of the excavation were not shored, and dirt and other material removed from excavation was placed too close to the edge of the excavation;
- Lévesque died when the walls of the excavation collapsed. He was working alone at the time of the collapse.
Mr. Fournier was charged with two counts under the Code — criminal negligence for breach of the duty of persons directing work under section 217.1 thereby violating s. 220 of the Code, and manslaughter by unlawful act under section 222(5)(a) of the Code. There is no mention in the Superior Court decision about whether strict liability offences under the Quebec Safety Code were also laid against Mr. Fournier and what the outcome, if any of those charges were.
Following a preliminary inquiry, a judge committed Mr. Fournier to stand trial on both charges. Mr. Fournier challenged the committal to stand trial on the manslaughter charge.