For the first time in Ontario, an individual charged under the Bill C-45 provisions of the Criminal Code (the “Code”) has been sentenced to serve time in prison for criminal negligence. Vadim Kazenelson, the Metron Construction Corporation (“Metron”) project manager who was responsible for overseeing a construction crew involved in a fatal accident on December 24, 2009, was convicted of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm and sentenced to 3.5 years in prison.

The accident that led to Mr. Kazenelson’s conviction occurred when a swing stage (also referred to as suspended scaffolding) being used on a construction project collapsed. When the swing stage collapsed, four workers who were not tied to lifelines fell 13 stories to their deaths. A fifth worker sustained serious injuries in the accident.

The evidence established that Mr. Kazenelson had been aware that fall protection was not in place, which was required under the relevant Construction Project Regulation to theOccupational Health and Safety Act (the “OHSA”). The Court noted that Mr. Kazenelson had taken training courses offered by the Construction Safety Association of Ontario (CSAO), which made it clear that a fundamental rule for worker safety was that every worker on a swing stage had to be protected by a fall arrest system at all times. At the time of the collapse, the swing stage, which was equipped with only two lifelines, had seven people on it, only one of whom was properly tied to a lifeline.

The Court found that Mr. Kazenelson had allowed the workers to continue to work in dangerous conditions because Metron was behind schedule in completing repairs to the concrete balconies of an apartment building, and was attempting to complete the project by the end of the year. The Court found that Mr. Kazenelson’s failure to take reasonable steps to protect the workers under his supervision after becoming aware that insufficient lifelines were available on the swing stage showed wanton and reckless disregard for the lives and safety of the workers. The Court noted that a seriously aggravating circumstance in relation to the moral blameworthiness of Mr. Kazenelson’s conduct was that he had been aware of the risk to the workers’ safety, and had apparently weighed that risk against Metron’s interest in continuing work before deciding to “take a chance”. The Court determined that a significant term of imprisonment was necessary in order to adequately denounce Mr. Kazenelson’s conduct and deter persons in positions of authority from engaging in similar conduct.

The President and director of Metron, Mr. Swartz, had previously pleaded guilty to four charges under the OHSA and was personally fined $90,000. Metron also pleaded guilty to one charge of criminal negligence under the Code, becoming the first Ontario company in history to plead guilty to charges of criminal negligence causing death. The company’s $200,000 fine was raised to $750,000 on appeal, as the Court of Appeal found that criminal negligence was a different and more serious offence than those found under the OHSA, and should be punished accordingly.

The Metron case serves as a stark example of the serious consequences that could occur when health and safety policies are not followed. Employers should ensure that all workers are aware that health and safety considerations must always take precedence over production targets or deadlines.

Although criminal charges under the Code have been laid in only eight cases since the Bill C-45 amendments came into effect in 2004, the increased risk of criminal liability – as well as financial liability and the responsibility for the safety of employees – should make every employer all the more vigilant in promoting safe work practices and enforcing health and safety policies in their workplace.