Having been convicted of criminal negligence causing death in June 2015, Vadim Kazenelson was today sentenced to 3 ½ years’ imprisonment for his role in a tragic scaffold collapse that killed four workers and seriously injured a fifth on Christmas Eve 2009. This represents the first time a supervisor in Ontario has been sentenced to imprisonment under the Bill C-45 amendments to the Criminal Code of Canada, which came into effect on March 31, 2004.
Those amendments, which were intended to broaden the scope of criminal liability in the occupational health and safety context, have yielded only a handful of prosecutions since their inception almost 12 years ago; however, it would seem that the Metron Construction tragedy represents the case in which Bill C-45 has finally found its “teeth”.
The sad details of the December 24, 2009 incident have been widely reported. On that date, a swing-stage collapsed 13 stories above the ground; and of the 6 Metron workers who were standing on it at the time, only one of them was wearing a safety harness. In the result, 4 workers plummeted to their deaths; and although the fifth unsecured worker survived the fall, he sustained serious and life-altering injuries. Mr. Kazenelson was Metron’s manager on the project.
Following the tragedy, Metron Construction Inc. and its owner, Joel Swartz, were charged under the Bill C-45 amendments. Although the charges against Mr. Swartz were subsequently withdrawn (and replaced with charges under the Ontario Occupational Health and Safety Act, in respect of which he ultimately pleaded guilty and was assessed a $90,000 fine), the criminal charges were maintained against the Company; and Metron eventually pleaded guilty to criminal negligence causing death. The Company was then fined $200,000; however, both Metron and the Crown appealed that figure, with the result that the Appeals Court determined that the $200,000 fine was “manifestly unfit” and increased it – dramatically – to $750,000 in September 2013.
The 3 ½ year prison sentence now handed down to Mr. Kazenelson represents a similarly dramatic “bookend” to the penalty imposed on the corporation. Although the sentence will no doubt attract debate (the Crown had sought 4 or 5 years, the defence had suggested 1 or 2 years, and Mr. Kazenelson has already announced his intention to appeal the sentence), the fact is that imprisonment is a very unusual sanction in the occupational health and safety sphere. Although certainly not unprecedented, supervisors are rarely sentenced to prison time for violations of provincial occupational health and safety legislation; and this represents only the second instance in which an individual has been sentenced under Bill C-45 – in the first, a landscape contractor in Quebec was sentenced to 2 years less a day (which was served in the community) following a criminal negligence conviction in relation to an incident in which one of his workers was crushed and killed by a backhoe.
As has been the case with every aspect of the Metron saga, Mr. Kazenelson’s conviction is (and any appeal that he pursues will be) very significant to employers:
- Firstly, as a reminder of the tragic human consequences that can arise when an employer fails to properly prioritize occupational health & safety and ensure safe working conditions for its employees;
- Secondly, as punctuation on the Bill C-45 amendments, and the very potent criminal sanctions that those amendments were intended to make available (and now have decisively provided for) in relation to occupational health and safety incidents; and
- Thirdly, as an exhortation that employers be mindful of the critical role that individual supervisors must play in promoting and maintaining occupational health & safety compliance.
Indeed, the apportionment of liability and penalties in the Metron case – i.e. to the Company, to its owner, and now to the supervisor in charge on the fateful day – highlights the fact that occupational health & safety compliance must be a “top down / bottom up” mandate for organizations. In other words, everyone within an organization has an important role to play; and, in particular, it is critical for employers to ensure that their supervisors – who are most often the Company’s “eyes”, “ears” and “hands” on individual job sites – understand, accept and deliver on their health & safety responsibilities.