January 20, 2016

By Brad Smith

“… a significant term of imprisonment is necessary to reflect the terrible consequences of the offences and to make it unequivocally clear that persons in positions of authority in potentially dangerous workplaces have a serious obligation to take all reasonable steps to ensure that those who arrive for work in the morning will make it safely back to their homes and families at the end of the day.”

Those are the concluding words of the Court when it sentenced Vadim Kazenelson to incarceration for 3 ½ years on January 11, 2016.

On June 26, 2015 Mr. Kazenelson was found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. The charges arose from an incident in which five workers fell more than 100 feet to the ground when the swing stage on which they were working suddenly collapsed. Mr. Kazenelson was the project manager for the employer, Metron Construction Incorporated.

Although the swing stage had several problems, was not labeled properly and collapsed on the day of the accident, Mr. Kazenelson was not negligent for these reasons. Mr. Kazenelson was negligent because he boarded the swing stage with the workers knowing there was not enough lifelines for everybody. None of the victims were attached to a lifeline as required by law and industry practice.

The project was working with a deadline. The Court concluded that Mr. Kazenelson made the decision to allow the workers to work in “manifestly dangerous conditions” (i.e. without lifelines) to avoid putting the deadline further out of reach. It was an aggravating factor that Mr. Kazenelson was aware of the risk and chose to assume the risk to keep the project working towards its deadline.

There were some mitigating factors: Mr. Kazenelson did not have a prior record; Mr. Kazenelson was unquestionably of good character; Mr. Kazenelson was not responsible for the faulty swing stage; he did not play a role that led the victims to board the stage without fall protection.

The Court stated the paramount objectives of sentencing are denunciation and general deterrence. Imprisonment was required to meet those objections. Thus, in the view of the Court, the question was not whether Mr. Kazenelson should go to jail but one of how long.

Ultimately the Court has sent a clear message: those persons in positions of authority who do not address an apparent risk or danger which results in death or serious injuries will face significant jail time. The Court also sent the message that conviction under the Criminal Code will result in a significantly greater penalty than under the Occupational Health and Safety Act.

The decisions on conviction: R. v. Kazenelson here; and sentencing here.