The recent Ontario Superior Court of Justice decision in R v. Vadim Kazenelson, in which a project manager was convicted of criminal negligence and sentenced to 3½ years in jail after a tragic accident on a construction site, should be of interest to everyone working in the construction industry. The decision highlights the importance of safety on jobsites and makes it clear that the Court may hold project managers, and possibly other stakeholders, criminally liable for non-compliance with safety standards.
This is the first time in which a sentencing decision orders jail time for a manager under the Canada Criminal Code provisions, implemented in 2004. These provisions impose liability on organizations and managers who fail to take reasonable steps to prevent their workers from being injured.
It was the afternoon of Christmas Eve 2009 and everybody on the Toronto construction project presumably wanted to finish what they were doing and get home into the bosom of their families. It was not to be for some. A motorised scaffolding collapsed at the project, resulting in the death of four workers and the critical injury of another. A 6th worker escaped the incident unharmed because, unlike the other five workers, he was using the proper safety harness called a “lifeline” as required by the Construction Regulation made under the Occupational Health and Safety Act. A 7th person, the project manager, was also not wearing a lifeline, but was unhurt because he was able to scramble up to a nearby balcony. Of the two lifelines available at the time, only one was being used.
The project manager was charged under the Criminal Code. Although the facts were hotly contested, the trial judge ultimately found a version of the facts unfavourable to the project manager.
Just before the accident, the project manager rode up on the scaffolding and noted that six workers were using the scaffolding, with only two lifelines. He immediately raised his concerns, but did not immediately ensure that workers rectify the safety breach; he allowed the continued use of the scaffolding without the proper use of lifelines. The project manager rode the scaffolding down with the six workers and was on the scaffolding when it collapsed.
The judge convicted the project manager of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. Why?
The judge found that the project manager had been properly trained on necessary safety procedures when working at heights and that the project manager had trained all but one of the workers involved in the accident. Indeed, the workers knew that if they did not comply with the safety procedures and were caught, they would be fired. Accordingly, the decision did not turn on the improper training of workers, lack of safety equipment, or improper inspection of the scaffolding apparatus in the days leading up to the incident.
Instead, the judge convicted solely based on what happened on the day of the accident. The judge held that the project manager had acted negligently by allowing the workers to continue using the scaffolding despite knowing that five workers were not attached to their own lifelines as required. The judge noted that lifelines are mandatory for the very reason that platforms can fail. Accordingly, any permitted violation of the lifeline policy was reckless, particularly when the project manager specifically recognized the risk, but did nothing.
The trial judge issued separate reasons for his sentencing decision. He acknowledged that the project manager had worked in the industry for many years, had no criminal record, and was hardworking and remorseful. He also noted that the project manager had not acted negligently in the days before the accident, had inherited the problem from the foreman (who died in the accident) when he discovered that there were insufficient lifelines, and was not responsible for the scaffolding collapse.
However, there was a significant and serious aggravating factor. The project owner had set a year-end work completion deadline, with a $50,000 bonus at stake. The judge inferred the project manager had not insisted on the additional lifelines as soon as he discovered the safety breach because it would have adversely affected the deadline. The judge concluded that the project manager knew of the risk, but decided to ignore it because it was in the construction company’s interests “to take a chance.”
Accordingly, the judge sentenced the project manager to 3½ years in jail. He decided that imprisonment was necessary to make “unequivocally clear to those in positions of authority in potentially dangerous workplaces that they have a serious obligation to take all reasonable steps to ensure that those who arrive for work in the morning will make it safely back to their homes and families at the end of the day.”
Proper safety policies and training are necessary and, in this case, likely insulated upper management from criminal responsibility. Although the owner of the construction company and the company itself were both charged under the Ontario Occupational Health and Safety Act, no criminal charges were pursued against them. Ultimately, the owner paid $90,000 in fines personally and the company paid over $300,000.
The decision highlights that although proper policies, training, and inspection are necessary, they are not sufficient. Safety issues must be addressed as soon as they are discovered; the project manager had recognised the safety breach 30 minutes to 2½ hours before the accident and did not act. Further, it matters not whether the individual workers know of a risk and are content to take it; they do not have a say about taking a chance on their own safety. The legislation places the burden on management to ensure that proper safety precautions are in place and being followed.
Finally, as a motherhood issue, a contractor cannot put workers’ safety at risk to add to the contractor’s bottom line. Repercussions will be serious.
Image courtesy of infinitetrix, Creative Commons.
Edited by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.
Written by Tim Morgan Tim Morgan is a litigator with a focus on commercial matters. He has appeared before all levels of Ontario Courts.