THE EMPLOYERS' EDGE
Ontario Court of Appeal Upholds 3.5 year Jail Sentence for Project Manager
On Christmas Eve 2009, a tragic workplace accident occurred, when 5 workers employed by Metron Construction Incorporated fell 13 stories, more than 100 feet, when working on a swing stage without fall arrest. Four of the workers fell to their death. One worker survived the fall, but was left with serious permanent injuries. A sixth worker who had tied himself off to one of the two lifelines available did not fall when the swing stage collapsed.
The project manager, Vadim Kazenelson, was charged with 4 counts of criminal negligence causing death, and one count of criminal negligence causing bodily harm. After a trial, Mr. Kazenelson was convicted and sentenced to three and a half years on each count, to be served concurrently. Mr. Kazenelson appealed both his convictions and the sentence.
In upholding the trial judge’s decision, the Ontario Court of Appeal set out the trial judge’s critical findings that (1) Kazenelson had authority to direct the workers working on the swing stage, (2) he knew well in advance of the collapse that there were only two lifelines available for 6 workers and did nothing to rectify that situation, and (3) he permitted 6 workers to board the swing stage with their tools when he had no information about the load bearing capacity of the swing stage. The trial judge also found that Kazenelson showed a “wanton and reckless disregard” for the lives and safety of these workers and the actions amounted to criminal negligence.
The Court dismissed the appeal finding that the trial judge had committed no legal or other error and that his reasons for conviction and sentence were clear and rooted firmly in his findings of fact. The court stated that there was no merit in the argument that the sentence was unfit.
Since this tragic accident the Ontario government has gone through an extensive review of the Health and Safety system in Ontario, and many changes have been made including the latest changes in what was referred to as Bill 177. As we know from past blogs the maximum fines for individuals charged and convicted now under the Occupational Health and Safety Act has risen from $25,000 to $100,000; and for corporations the maximum per conviction has gone from $500,000 to $1,500,000. With this case, and the increased fines, employers face potentially huge costs if found to have failed to comply with Health and Safety requirements.
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