Her Majesty the Queen v Vadim Kazenelson, 2016 ONSC 25
A recent decision
of the Ontario Superior Court of Justice (Her Majesty the
Queen vs.Vadim Kazenelson, 2012 ONSC 25) deals
with the duty imposed on project managers to take reasonable
steps to prevent bodily harm to workers and highlights the
possible severe consequences of a breach of this duty.
Metron Construction Corporation (“Metron”) was engaged to
repair and restore the concrete balconies of two
eighteen-story apartment buildings in the City of Toronto.
Metron hired Vadim Kazenelson as its project manager to
oversee the completion of this work. The project was to be
completed by November 30, 2009, but was delayed prior to its
commencement. As a result of the delay, the Owner offered
Metron a $50,000.00 bonus if the project was completed by
the end of December 2009.
order to complete the work, Metron used motorized swing
stages which were suspended from the roofs of the buildings
to provide workers with access to the balconies on the
various floors. On December 24, 2009, six workers stepped
onto the swing stage. It collapsed, sending five workers
plummeting thirteen stories to the ground below, killing
four of them. On the day in question, there were six workers
using the swing stage as opposed to the usual two, but only
two lifelines in place to protect the workers from a fall.
Kazenelson was subsequently charged with four counts of
criminal negligence causing death and one count of criminal
negligence causing bodily harm for his role in the incident.
Mr. Kazenelson was ultimately convicted of all five offences
and sentenced to three and a half years imprisonment on each
count, to be served concurrently.
Justice MacDonnell stated:
“Section s. 217.1 of the Criminal Code imposes a legal duty
on everyone who has the authority to direct how another
person does work or performs a task “to take reasonable
steps to prevent bodily harm to that person or any other
person arising from that work or task”. It was not disputed
that in his role as project manager Mr. Kazenelson was
subject to that legal duty.
a matter of law and of industry practice every person
working on a swing stage must be protected from the danger
of a fall. To comply with that obligation at the Kipling
site, Metron employed a ‘fall arrest system’. A fall arrest
system includes a full body harness with a lanyard that
attaches to a vertical lifeline, which in turn is anchored
to an independent fixed support on the roof of the
building. Only one worker at a time may use a lifeline.
Put another way, every person working on a swing stage must
be attached to a separate lifeline. The applicable
provincial legislation, industry standards, and the training
courses provided to the industry by the Construction Safety
Association of Ontario (CSAO) make it clear that the
requirement that every worker who steps onto a swing stage
be protected by a fall arrest system at all times is the
fundamental rule for the protection of worker safety.
Kazenelson was well aware of this fundamental rule…”.
Court found that while it was not Mr. Kazenelson’s duty to
personally inspect the swing stages every morning, he
breached the duty imposed on him by failing to take any
steps to prevent the workers from using the swing stage once
he became aware that there were an insufficient number of
lifelines in use. In failing to act, the Court held that Mr.
Kazenelson showed a wanton and reckless disregard for the
lives and safety of the workers and that his omissions
amounted to criminal negligence.
determining that Mr. Kazenelson breached his duty, the Court
held that the duty imposed by section 27(1) of the
Occupational Health and Safety Act (duty of supervisor
to provide protective devices which must be used), as well
as O. Reg. 213/91 (the “Construction Regulation”)
(dealing with fall arrest systems) are instructive in
identifying the steps it would be reasonable for a person
subject to a duty under section 217.1 of the Criminal
Code to take to prevent bodily harm in the workplace.
a term of imprisonment is necessary to adequately denounce
Mr. Kazenelson’s conduct and to deter other persons with
authority over workers and potentially dangerous work places
from breaching the legal duty set forth in Section 217.1 of
the Code to take reasonable steps to prevent bodily harm
from befalling those workers”.
interesting to note that in separate proceedings, Metron
pleaded guilty to criminal negligence causing death and was
initially fined $200,000.00. The Crown appealed. The
Ontario Court of Appeal allowed the appeal and increased the
fine to $750,000.00. The Court of Appeal held:
“The respondent was convicted of a very serious offence. It
is a different and more serious offence than those found
under the OHSA. As mentioned, the site supervisor’s role
should not serve to diminish the gravity of the offence.
The intent of Bill C-45 is to trigger responsibility by the
corporation for the conduct and supervision of its
[Editor’s note – see
Legal Update 118, December 2013 for a discussion of the
Ontario Court of Appeal decision with respect to the
decisions serve an important reminder of the importance of
strictly adhering to work place safety requirements and of
the potential criminal exposure of those involved in
© 2016 Ronald W. Price