March 9, 2016
On January 11, 2016, the Ontario Superior Court of Justice sentenced a front-line supervisor to imprisonment for 3½ years for four counts of criminal negligence causing death and one of criminal negligence causing bodily harm stemming from a tragic workplace accident. The 2016 decision in R. v. Kazenelson appears to be the first case of the conviction of a front-line supervisor under section 217.1 of the Criminal Code and sentencing to a substantial term of imprisonment. The 2015 conviction and the January 2016 sentence reflect the trends in occupational health and safety law of more charges, more prosecutions, more jail time and harsher sentences against companies – and against directors, officers and supervisors personally. It also sends a very clear message: the obligation under section 217.1 that everyone with 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” is very real – and the consequences of failing to do so can be grave.
The Accident. Mr. Kazenelson was the project manager for the Metron Construction site. On Christmas Eve 2009, six workers with their tools were returning to the ground on a swing stage at the end of the workday. There were only two lifelines available for the workers to attach their lanyards; only one worker attached himself. The project manager didn’t encourage or coerce the workers to travel together on the stage. He wasn’t aware of the capacity of the stage or whether it had been properly assembled or installed. But he was aware that lifelines were required by law and industry standard for workers on a stage like the one being used and that there were only two lifelines. He raised the issue with the site foreman (who reported to him) but was told “not to worry”. The swing stage failed and the five workers not attached to lifelines fell over 100 feet to the ground. Four died; only one survived, but with serious injuries.
The Charges. The Crown charged the project manager with four counts of criminal negligence causing death and one of criminal negligence causing bodily harm, based on the duty under section 217.1 of the Criminal Code. Section 217.1 requires everyone who has 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.” Notably, the tragic accident also resulted in charges (and convictions) against the construction company in R. v. Metron Construction Corporation and against its owner and sole director personally in R. v. Swartz.
The Conviction. In 2015, the Ontario Superior Court of Justice convicted the project manager. The Court concluded there was a patent violation of occupational health and safety regulations and of the industry standard that was well-established and part of mandatory training for working at heights. The project manager’s failure to take reasonable steps to stop the workers from the activity they apparently undertook voluntarily was sufficient to breach the section 217.1 duty.
The Sentence. In January 2016, the Court sentenced the project manager. The Court made it clear the sentence must reflect the offender’s degree of responsibility as required by section 718.1 of the Criminal Code, which considers the seriousness of the crime’s consequences and the offender’s moral blameworthiness; conduct that could be considered as deliberate endangerment would receive a more substantial prison term. The Court imposed a 3½ year term of imprisonment:
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Occupational Health and Safety Team to discuss meeting your occupational health and safety obligations.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
© McInnes Cooper, 2016. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.
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On October 19, 2012 the Supreme Court of Canada (SCC) decided a teacher criminally charged with possession of child pornography and unauthorized…
Jun 14, 2012
As any Canadian knows, July 1st – Canada Day – is the first long weekend of the summer; or is it? What about when July 1 falls on a…
Mar 1, 2012
Social media blurs line between work time and “off duty” time. Employers can, however, discipline employees who go over the line. We have 10…
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