Ontario Court of Appeal Upholds Kazenelson Conviction

Ontario Court of Appeal Upholds Kazenelson Conviction

On December 24th 2009, there was a catastrophic event that ultimately led to changes to the health and safety framework in Ontario. On this day, Christmas Eve, a swing stage split in two, sending five workers careening down 13 stories to the ground, resulting in 4 fatalities and critical injuries to another. Skip forward to 2012, Metron, the project owner, was fined $750,000, plus a victim surcharge. Joel Swartz, a director of Metron, was fined $90,000, plus a victim surcharge. I’ve written about the “Metron Case” before, but it continues to rear its ugly head.

The charges laid in 2012 were not the end of the charges laid; criminal charges were also laid in June 2015 to Vadim Kazenelson, the project manager. He was found guilty of four counts of criminal negligence causing death, and one count of criminal negligence causing bodily harm.

The Crown proved that Kazenelson was aware of obvious safety risks and that he gave no consideration to those risks, willfully choosing to proceed without caution. Kazenelson allowed the workers to board the swing stage, with tools, without knowing the capacity of the swing stage, without providing harnesses, and without providing the required number of lifelines.

Failure to follow industry standard basic training, along with failure to identify the capacity of the swing stage and ensure the required number of lifelines were present and used was a breach of Provincial legislation and a breach of section 217.1. of the Criminal Code of Canada. Kazenelson knew better.

In July 2016, he was sentenced to three and half years for each offence to be served concurrently (at the same time). The judge presiding over the case stated, “A significant term of imprisonment is necessary to reflect on the terrible consequences of the case.” Now don’t get me started on whether I think that the sentence was reasonable; that’s a discussion for another day. So why am I writing about this again?

Up until the end of 2017, Kazenelson was out on bail awaiting his appeal. On January 30, 2018, the Ontario Court of Appeal denied Kazenelson’s appeal. This decision is huge! The appeal court justice, a three-judge panel, ruled specifically that the trial judge had not erred during the trial and had determined the case correctly.

They stated that “The trial judge’s reasons for conviction and sentence are clear and the chain of reasoning is rooted firmly in his findings of fact. He [the judge] made no legal or other errors. The appellant largely repeated arguments considered and dismissed by the trial judge.”

The Ontario Court of Appeal confirmed the sentence of three and half years in prison. Justice Peter Lauwers wrote that “the desire to complete the work that day led the appellant to compromise his duties.”

This landmark decision should send a strong message to employers and supervisors. When there is at-risk behaviour and foreseeable risks where the risk of harm has not been mitigated, or a willfully blind eye has been turned, the courts will take this seriously.

We are just past nine years to the day of this tragedy. Families and lives have been changed forever. New standards have been created to improve working at heights safety, but It will take a combined effort between employers, supervisors, and workers to move forward on the right path to prevent similar incidents in the future. 

Written by Jeff Thorne | Training and Consulting Manager

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