The tragic saga of a quadruple fatality on a construction site on Christmas Eve 2009 has come one step closer to its conclusion with the criminal conviction of the project manager overseeing the project. On June 26, 2015, following a trial, Vadim Kazenelson, the project manager overseeing the project for Metron Construction Company ("Metron"), was found guilty of five counts of criminal negligence in relation to the accident. Mr. Kazenelson has not yet been sentenced by the court, but given the number and severity of the convictions, it is likely that he will be sentenced to serve a lengthy custodial sentence. Sentensing is set for late October, 2015.
In August 2009, Metron was retained to repair concrete balconies on two high-rise apartments. As was its normal practice, Metron hired a project manager and a site supervisor to oversee the project. Mr. Kazenelson was retained by Metron as its project manager. Mr. Kazenelson owned and operated his own construction company and according to reports, came highly recommended as an experienced and qualified project manager.
On December 24, 2009, Metron workers were working on the 14th floor of one of the high-rise apartment buildings. At approximately 4:30 pm, six workers—including the site supervisor—climbed onto a swing stage (a suspended work platform) to travel to the ground. The swing stage collapsed. Four workers fell to their death, a fifth worker survived the fall but was seriously injured, and the sixth worker did not fall because he was stopped by a properly secured lifeline.
A post-incident investigation revealed that three of the deceased workers—including the site supervisor—had levels of marijuana in their systems consistent with recent consumption, and there were only two lifelines in the area serviced by the swing stage. It was also discovered that the design and assembly of the swing stage was faulty. The manufacturer had not properly tested it or obtained the approval of an engineer in relation to its design. As designed, the swing stage was not safe for even two workers to use. The welding was inconsistently done and inadequate, and the welds were already cracked and broken prior to the swing stage's collapse. Finally, when it was delivered to the construction project, the swing stage had no manual, markings, serial numbers, or labels regarding maximum capacity.
The Ministry of Labour and Toronto Police Services both investigated the accident. After completing its investigation, the Ministry of Labour charged Metron, Joel Swartz—Metron's president and the sole director of the company—Swing N Scaff Inc.—the company that supplied the swing stage—andPatrick Deschamps—a director of Swing N Scaff Inc.—witha total of 61 offences under the Occupational Health and Safety Act, R.S.O. 1990, ch. O.1 ("OHSA").
On July 13, 2012, Mr. Swartz pleaded guilty to failing, as a director, to take all reasonable care to ensure that:
- workers did not use a defective or hazardous swing stage;
- the swing stage was not loaded in excess of the weight it was meant to bear;
- workers were adequately trained in the use of fall protection by a competent person; and,
- Metron prepared and maintained written training and instruction records for each worker.
Mr. Swartz was fined $90,000 and a 25% victim surcharge was imposed as required by the Provincial Offences Act, RSO 1990, c. P. 33.
On December 4, 2014, Swing N Scaff Inc. pleaded guilty to failing to ensure that a suspended platform and/or a component was in good condition. Swing N Scaff Inc was fined $350,000 and a 25% victim surcharge was imposed. Patrick Deschamps also pleaded guilty to failing, as a director, to take all reasonable care to ensure a suspended platform was in good condition and that a platform weighing more than 525 kilograms was designed by a professional engineer in accordance with good engineering practice. He was fined $25,000 for each count, plus the required victim surcharge.
After completing its investigation, the Toronto Police Services also charged Metron and Mr. Kazenelson with criminal negligence under the Criminal Code (the "Code").
On June 15, 2012, Metron pleaded guilty to one count of criminal negligence causing death. By doing so, Metron became the first Ontario corporation convicted of criminal negligence under the Code as amended by Bill C-45. Metron was sentenced by Justice Bigelow of the Ontario Court of Justice on July 13, 2012 to a fine of $200,000. The Crown had requested that a fine of $1 million be imposed by the court, and appealed the sentence to the Ontario Court of Appeal. The Court of Appeal found that the sentencing judge erred by relying on sentencing case law under the OHSA, and he failed to appreciate the higher degree of "moral blameworthiness and gravity associated" with a criminal conviction. However, the prospect of fining a company into bankruptcy should not be precluded in an appropriate case. The Court of Appeal concluded that the original fine was unfit and allowed the appeal. It imposed a fine of $750,000 on Metron.
Mr. Kazenelson did not plead guilty and elected to proceed to trial in relation to four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm filed against him. On June 26, 2015, following a trial, Justice Ian MacDonnell delivered his verdict that Mr. Kazenelson was guilty on all five counts. The court has not yet imposed a sentence on Mr. Kazenelson, but given the number and severity of charges against him it is likely he will be sentenced to serve a custodial sentence.
It is clear from the Metron saga that it is not sufficient for a company merely to setup a health and safety system and expect to avoid regulatory or criminal liability following a workplace accident. Metron appears to have had at least a partially functioning health and safety system. In the facts submitted to the court during the guilty plea, the Crown agreed that Metron:
- required the owner of the apartment buildings to arrange for an engineering inspection and re-certification of the roof anchors to ensure compliance with safety requirements prior to commencing work;
- was cooperative and complied with all requests made by the Ministry of Labour during periodic inspections of the site between October and December 2009
- arranged for the project manager, site supervisor, and workers to take swing stage and fall arrest courses;
- the project manager and site supervisor conducted periodic meetings with the workers to review safety requirements, including the use of swing stages;
- had a comprehensive safety manual and gave a copy to each worker;
- had its project manager perform weekly inspections and submit written reports to Metron; and,
- held periodic meetings with Ministry of Labour inspectors.
All of the steps were apparently insufficient for Metron or its director to mount a successful defence to the regulatory and criminal charges against them. This underscores the fact that workplace safety must be more than a onetime step. It must be an ongoing operational imperative that is fulfilled each day. An organization must not only establish a health and safety system, but also engage in regular and documented monitoring of the functioning of that system. In addition, documented remedial steps must be taken to correct any deficiencies identified in the operation of that system
The Bill C-45 amendments to the Code have meant greater risk of criminal liability for companies and senior executives who fail to take every reasonable precaution to prevent bodily harm at the workplace. Metron is a clear example of how quickly this liability may materialize and how serious the consequences can be for employers. Employers are well advised to take this as a reminder to conduct a thorough review of their health and safety systems to identify and close, in a documented manner, any deficiencies that may expose the organization to liability.
For more information about the Metron decision or for assistance with a health and safety audit, please contact Norm Keith at 416 868 7824 or Shane Todd at 416 868 3424.
Source: Fasken Martineau