Jail Term for Construction Superintendent Upheld by Court of Appeal

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.

After his conviction and sentence, Kazenelson appealed.  In the reasons for the decision of the Court of Appeal, Kazenelson’s counsel argued that the finding of guilt stretched penal negligence “too far”.  Kazenelson’s legal team also argued that there was an absence of proof, beyond a reasonable doubt, that Kazenelson showed “a wanted and reckless disregard for the workers”. The trial judgement considered the application of the Occupational health & Safety Act and regulations in finding him guily. However, the court was apparently not aware of or at least did not consider the overarching duties of employers and the corresponding.

In rejecting the sentence appeal, Court of Appeal in rather brief reasons held, “there is no legal error in the trial judge’s expression, understanding or application of the legal test for criminal negligence”.  The four convictions for criminal negligence causing death and the one conviction for criminal negligence causing injury were upheld.  Relating to the sentence appeal, Kazenelson challenged the fitness of the sentence issued by the Trial Court proposing a 3.5 year jail term for each of the five convictions, to be served concurrently not consecutively.

The Court of Appeal rejected the sentence appeal and the plea that for a first time offender the sentence was harsh, excessive and unfit. The Court said “I see no error in principle and no merit in the argument that the sentence is unfit.  I would dismiss this sentence appeal”.

This strong endorsement of the Trial Court decision, both on the conviction and sentence, is a strong message for supervisors, managers and corporate executives in industry, you will be held to a very high standard of ensuring the safety of workers. Both the Trial Court and the Appellant Court placed no weight on the fact that three out of the four deceased were impaired by THC, the psychoactive ingredient in cannabis and hashish.  Further, the duties of workers and the on-site supervisor, who failed to use safety equipment provided by the employer,  also appears not to be taken into account in either the finding of guilt or the sentencing appeal.

The Kazenelson case stands for the proposition that when there has been a loss of life in the workplace, the threshold to prove criminal negligence causing death is surprisingly low for the establishment of the criminal offence of Occupational Health and Safety Criminal Negligence.  The chilling effect of the Kazenelson’s appeal, together with the recent 300% increase in fines for employers and a 400% increase in fines for individuals under Ontario’s Occupational Health and Safety Act, are stark reminders of the seriousness of maintaining a healthy and safe workplace.  For more information on how to ensure that your occupational health and safety management system meets the high threshold required to establish a due diligence defence under OHSA charges, and defend OHS criminal negligence charges, please feel free to contact me.