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Employers on notice after manager gets jail sentence for fatal safety lapse

Posted On: Jan. 31, 2016 12:00 AM CST

Canadian employers, managers and supervisors are on high alert as a result of a jail sentence imposed on a construction project manager in a fatal workplace accident, a stiff sentence meant to deter those in authority from taking a cavalier attitude toward health and safety.

On Jan. 11, Ontario Superior Court Judge Ian MacDonnell sentenced Metron Construction Ltd. project manager Vadim Kazenelson to 3½ years in prison for his conviction on four counts of criminal negligence causing death and one count of causing bodily harm in a December 2009 incident in which a swing-stage scaffold collapsed at a Toronto high rise, killing four employees.

“I'm quite certain employers across the province of Ontario had shivers sent down their spines because now it's on the record, and an individual has been incarcerated for 3½ years for allowing workers to work under conditions that were unsafe,” said Chris Buckley, president of the Toronto-based Ontario Federation of Labor.

In 2013, 902 employees died in workplace incidents, according to the latest data compiled by the Association of Workers Compensation Boards of Canada.

Mr. Kazenelson's conviction occurred under the Criminal Code of Canada, which legal experts say allows for stiffer fines and prison sentences, rather than the provincial Occupational Health and Safety Act.

The decision is relevant for all Canadian employers and managers who direct workers' tasks as they may be held accountable under the federal law, Élodie Brunet, a member of the labor and employment law group of Lavery de Billy L.L.P., said in an email.

The federal law was amended in 2004 in response to a 1992 Nova Scotia coal mine explosion that killed 26 miners in which company officials escaped conviction despite knowing about serious safety issues, according to legal documents.

With a handful of convictions since its implementation, the longest sentence imposed under the code occurred in 2013 when a navigation officer for the Queen of the North ferry in British Columbia was sentenced to four years in jail for a sinking that killed two passengers.

In Mr. Kazenelson's case, the judge applied the code's principles of denunciation and deterrence to condemn and discourage unlawful conduct that results in a workplace fatality, legal experts said.

“The prison sentence, it's fair to say, is breaking new ground here in terms of jail time for supervisors or managers who are found criminally negligent under the criminal code,” said Daryl Cukierman, a Toronto-based partner at Blake, Cassels & Graydon L.L.P. “But I think it's important to keep in mind that the facts that were found by the court in this case were particularly egregious.”

The judge found there was wanton or reckless disregard for worker safety, Mr. Kazenelson had direct knowledge of the safety lapses and did nothing to rectify them, that having fall protection is a fundamental rule to protect employees working at heights and that the incident resulted in fatalities, he said.

“That is a sobering thing for supervisors,” said Adrian Miedema, partner in the Toronto employment group of Dentons Canada L.L.P. “It is not going to be enough to simply identify a concern, but these supervisors should, where appropriate, take proactive steps to rectify or remedy that concern.”

Jail a deterrent

Still, the sentence was “pretty harsh” considering Mr. Kazenelson was not the direct supervisor at the site and the person most directly responsible, Fayzulla Fazilov, told Mr. Kazenelson not to worry about the lack of harnesses and allowed the work to continue, said Norm Keith, Toronto-based partner at Fasken Martineau DuMoulin L.L.P. who was not involved in the case.

Mr. Fazilov also died in the incident.

“Why can't a project manager rely upon his onsite supervisor to deal with safety issues?” Mr. Keith said. “Just because the primary person responsible is not around, doesn't necessarily mean that you go harder on Mr. Kazenelson.”

In 2012, a trial judge imposed a penalty of $200,000 Canadian ($137,580) on Metron Construction, but the Ontario Court of Appeals the next year in­creased the fine to CA$750,000 ($516,000), plus a 25% victim's surcharge. The appeals court said the trial judge put too much emphasis on Metron's financial health and not enough on the gravity of the criminal negligence conviction and imposed the largest fine handed down to date for a workplace safety violation under the code, according to legal experts.

However, jail sentences are a more effective tool in sending employers a message about workplace safety, Mr. Buckley said.

“The more serious the consequences, the more likely someone is going to get thrown in jail,” Mr. Miedema said.