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Canada: Canada: Ontario Court of Appeal Upholds Criminal Conviction and Prison Sentence for Construction Project Manager

In R v Kazenelson, 2018 ONCA 77, the Ontario Court of Appeal upheld the conviction and the sentence imposed on a project manager who had been found guilty under the Criminal Code for criminal negligence causing death and criminal negligence causing bodily harm. Mr. Vadim Kazenelson’s conviction arose from a tragic accident that occurred on December 24, 2009 and that resulted in the death of four construction workers.

On June 26, 2015, Mr. Kazenelson was convicted of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. He was subsequently sentenced to 3.5 years in prison. Mr. Kazenelson was the first individual to ever be convicted of a criminal negligence offence under section 217.1 of the Criminal Code. Section 217.1 creates a legal duty for persons directing the performance of work to take reasonable steps to prevent bodily harm to the person performing the work or any other person arising from that work.

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 at trial established that Mr. Kazenelson had been aware that fall protection was not in place, which was required under the relevant Construction Project Regulation to Ontario’s Occupational Health and Safety Act. 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 trial judge found that Mr. Kazenelson had allowed the workers to continue to work in dangerous conditions because the employer 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 trial judge also 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 trial judge 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 the employer’s interest in continuing work before deciding to “take a chance”. The trial judge ultimately 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.

On appeal, Mr. Kazenelson argued that the trial judge’s decision was unreasonable because: his conduct did not rise to the high level of criminal negligence; neither Mr. Kazenelson nor the workers could have objectively foreseen the collapse of the swing stage; the workers were contributorily negligent; and the trial judge placed too much emphasis on general deterrence in sentencing. The Ontario Court of Appeal found that the trial judge’s decisions on conviction and sentencing were well-reasoned and principled, and dismissed the appeal.

This case serves as a stark example of the serious consequences that can occur when health and safety policies are not followed, both in respect of the tragic loss of life and criminal charges. As section 217.1 of the Criminal Code applies throughout Canada, employers who operate in Canada should ensure that all workers and supervisors are aware that health and safety considerations must always take precedence over production targets or deadlines.