The tragic saga of a quadruple fatality on a construction site on Christmas Eve 2009 has finally come to legal conclusion with the criminal conviction and sentencing of the project manager overseeing the project. On June 26, 2015, following a trial, Vadim Kazenelson (Mr. Kazenelson), the project manager overseeing the project for Metron Construction Company (Metron), was found guilty of five counts of criminal negligence in relation to the accident. Mr. Kazenelson has had sentencing submissions completed before the trial judge.
The Crown argued that a penitentiary sentence of 4 to 5 years was appropriate, and that the sentence should be at the upper range. The Defence argued that the appropriate sentence in this case was 12 months to 2 years of incarceration. The Defence argued that 4 years imprisonment overshoots the mark for deterrence purposes, and that there is a real risk of sentencing imbalance, given that imprisonment is a blunt instrument. At the conclusion of submissions, Justice MacDonnell commented that there is no sentencing precedent that could easily be applied to this case, and as a result, sentencing would require much more thought. Justice MacDonnell did note that it is common ground that incarceration should be imposed; the only question remaining is the length of incarceration. Justice MacDonnell adjourned the sentencing decision until January 11, 2016.
The Metron Swing Stage Collapse Background
In August 2009, Metron was retained to repair concrete balconies on two high-rise apartments. As was its normal practice, Metron hired a project manager and a site supervisor to oversee the project. Mr. Kazenelson was retained by Metron as its project manager. Mr. Kazenelson owned and operated his own construction company and according to reports, came highly recommended as an experienced and qualified project manager.
On December 24, 2009, Metron workers were working on the 14th floor of one of the high-rise apartment buildings. At approximately 4:30 pm, six workers—including the site supervisor—climbed onto a swing stage (a suspended work platform) to travel to the ground. The swing stage collapsed. Four workers fell to their death, a fifth worker survived the fall but was seriously injured, and the sixth worker did not fall because he was stopped by a properly secured lifeline.
A post-incident investigation revealed that three of the deceased workers—including the site supervisor—had levels of marijuana in their systems consistent with recent consumption, and there were only two lifelines in the area serviced by the swing stage. It was also discovered that the design and assembly of the swing stage was faulty. The manufacturer had not properly tested it or obtained the approval of an engineer in relation to its design. As designed, the swing stage was not safe for even two workers to use. The welding was inconsistently done and inadequate, and the welds were already cracked and broken prior to the swing stage’s collapse. Finally, when it was delivered to the construction project, the swing stage had no manual, markings, serial numbers, or labels regarding maximum capacity.
After completing its investigation, the Toronto Police Services also charged Metron and Mr. Kazenelson with criminal negligence under the Criminal Code (the “Code”).
Criminal Negligence Convictions
On June 15, 2012, Metron pleaded guilty to one count of criminal negligence causing death. By doing so, Metron became the first Ontario corporation convicted of criminal negligence under the Code as amended by Bill C-45. Metron was sentenced by Justice Bigelow of the Ontario Court of Justice on July 13, 2012 to a fine of $200,000. The Crown had requested that a fine of $1 million be imposed by the court, and appealed the sentence to the Ontario Court of Appeal.
The Court of Appeal found that the sentencing judge erred by relying on sentencing case law under the OHSA, and he failed to appreciate the higher degree of “moral blameworthiness and gravity associated” with a criminal conviction. Further, the sentencing judge erred by treating Metron’s ability to pay as prerequisite to the imposition of a fine. On this point, the court noted that economic viability of an organization may be a factor if the organization fills an important place in the market or is a significant employer. However, the prospect of fining a company into bankruptcy should not be precluded in an appropriate case.[1] The Court of Appeal concluded that the original fine was unfit and allowed the appeal. It imposed a fine of $750,000 on Metron.[2]
Mr. Kazenelson did not plead guilty and elected to proceed to trial in relation to four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm filed against him. On June 26, 2015, following a trial, Justice Ian MacDonnell delivered his verdict that Mr. Kazenelson was guilty on all five counts. The court has not yet imposed a sentence on Mr. Kazenelson, but given the number and severity of charges against him it is likely he will be sentenced to serve a custodial sentence.
It is clear from the Metron saga that it is not sufficient for a company merely to setup a health and safety system and expect to avoid regulatory or criminal liability following a workplace accident. Metron appears to have had at least a partially functioning health and safety system. In the facts submitted to the court during the guilty plea, the Crown agreed that Metron:
- required the owner of the apartment buildings to arrange for an engineering inspection and re-certification of the roof anchors to ensure compliance with safety requirements prior to commencing work;
- was cooperative and complied with all requests made by the Ministry of Labour during periodic inspections of the site between October and December 2009
- arranged for the project manager, site supervisor, and workers to take swing stage and fall arrest courses;
- the project manager and site supervisor conducted periodic meetings with the workers to review safety requirements, including the use of swing stages;
- had a comprehensive safety manual and gave a copy to each worker;
- had its project manager perform weekly inspections and submit written reports to Metron; and,
- held periodic meetings with Ministry of Labour inspectors.
The Bill C-45 amendments to the Code have meant greater risk of criminal liability for companies and senior executives who fail to take every reasonable precaution to prevent bodily harm at the workplace. Metron is a clear example of how quickly this liability may materialize and how serious the consequences can be for employers. Employers are well advised to take this as a reminder to conduct a thorough review of their health and safety systems to identify and close, in a documented manner, any deficiencies that may expose the organization to liability.
For more information about the Metron decision or for assistance with a health and safety audit or OHS training, please contact Fasken Martineau, both Norm Keith, partner at +1 416 868 7824 or Shane Todd, associate at +1 416 868 3424.
[1] R. v. Metron Construction Corporation , 2013 ONCA 541, at paras 98 and 108.
[2] Ibid., at para 120.