The tragic Christmas Eve 2009 deaths of four workers who fell twelve floors when the swing stage on which they were working collapsed stands as one of Canada’s worst workplace accidents.

At the end of the workday, six workers, including their foreman, climbed onto the swing stage with their tools to descend to the ground. The project supervisor, Vadim Kazenelson, joined them. In accord with provincial workplace legislation and industry standards, all had received fall arrest training and were equipped accordingly. But with the exception of just one worker, none had their fall arrest equipment engaged. Under the weight, the stage (later found to be defective) collapsed. Five of the workers fell. Four were killed, the fifth seriously injured. Mr. Kazenelson avoided falling by hanging onto the adjacent balcony.

Both the employer, Metron Construction, and Mr. Kazenelson were charged with four counts of criminal negligence causing death and one count of causing bodily harm, breaching the Criminal Code workplace duty of care (s.217.1):

Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.

A marked and substantial departure from what a reasonable supervisor would have done in the circumstances to meet this duty, coupled with a wanton or reckless disregard for the lives or safety of the workers, constitutes criminal negligence.

Metron pleaded guilty to one count of criminal negligence causing death. In a separate proceeding, Kazenelson was convicted in 2015 of all five counts. He was sentenced to 3.5 years for each count, to be served concurrently.

At trial, there was no dispute that Mr. Kazenelson knew that only one employee had his fall arrest equipment engaged. A key portion of his defence was that the decision of 5 of the 6 workers not to engage their fall arrest equipment meant that Mr. Kazenelson’s negligence had not caused their deaths and/or bodily harm. The trial judge rejected this submission at paragraph 147 of his decision:

…The defence submission in this regard amounts to an argument that a victim’s contributory negligence should sever the factual connection between an accused’s conduct and the deaths or injuries that resulted. However, “a victim’s contributory negligence is no answer to a charge of crime… [It] is generally no defence that the victim laid himself open to the act, or was himself guilty of negligence bringing it about”…..

On appeal from the convictions to the Court of Appeal for Ontario, the appellant argued that the trial judge had erred in failing to consider that the failure of the deceased and injured workers, along with that of appellant, to secure themselves, established that no one had adverted to the risk of the swing stage collapse. Absent advertence, the appellant’s omission could not constitute a wanton or reckless disregard for the workers’ safety.

Lauwers J.A. for the court, rejected this submission, agreeing with the trial judge’s finding that the appellant’s submission relied on the premise that the workers were solely responsible for their safety, which is inconsistent with s.217.1.

On the sentencing appeal, Lauwers J.A. rejected the appellant’s submission that that the workers’ contributory negligence acted to decrease the appellant’s moral blameworthiness, requiring a shorter custodial sentence. He agreed with the trial judge’s finding at paragraph 28 of his sentencing reasons:

Had the workers not been aware of the dangers of working without lifelines, or had they been ordered to work without them, the blameworthiness of Mr. Kazenelson’s breach of duty would undoubtedly have been greater. However, to mitigate the breach on the basis of the victims’ awareness of the danger or the absence of overt coercion would ignore the reality that a worker’s acceptance of dangerous working conditions is not always a truly voluntary choice. It would also tend to undermine the purpose of the duty imposed by s. 217.1 of the Criminal Code, which is to impose a legal obligation in relation to workplace safety on management.

The finding of the trial judge, upheld by the Court of Appeal, that employee negligence does not assist supervisors and their employers charged with criminal negligence, is consistent with the findings of the same court in regulatory prosecutions for contraventions of the workplace safety legislation. Employers are liable for the careless acts and omissions of their employees, even if well trained.

What is less clear in regulatory prosecutions is to what degree employee negligence should be considered as a mitigating factor in sentencing. Contrary to the path adopted in Kazenlson in the criminal domain, in regulatory proceedings, honest attempts at compliance that fall short of due diligence have been considered and accepted as a mitigating factor. It remains to be seen what impact, if any, Kazenelson will have on this approach.