On June 26 MacDonnell J. released his Reasons for Judgment in R. v. Kazenelson convicting the defendant of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.

Facts

The convictions arise from a catastrophic accident on Christmas Eve 2009. The constructor, Metron Construction, had been retained to restore the balconies of two 18-storey apartment buildings in Etobicoke. The work required the use of swing stages custom made for the project. For at least the swing stage of relevance here,  it consisted of four ten foot sections bracketed together and anchored to the building roof, permitting workers to work on two balconies at once. Noteworthy is that the supplier of the swing stage did not provide the constructor or the defendant project manager, Vadim Kazenelson, with any information as to the capacity of the modified swing stage.

For this type of project involving the use of a swing stage, provincial workplace legislation is clear that all workers engaged in work on the swing stage must use fall arrest equipment anchored to the roof of the building by a lifeline, independent of the swing stage. Each worker must have his/her own lifeline.

The defendant was not required by the constructor to be onsite at all times work was underway. He was onsite Christmas Eve morning before leaving and then returning in the afternoon to assist the workers.

At the end of the workday, five workers, the site supervisor (subordinate to the defendant) and the defendant, boarded the swing stage on the 12th floor with their tools. The defendant noticed that only two lifelines were in place. He raised the issue with the site supervisor but took no action after the supervisor said: “Don’t worry about it”. Only one of the workers attached his fall arrest to a lifeline.  The two motors were engaged to lower the swing stage to the ground. Almost immediately, the brackets connecting the two centre swing stage sections failed. Four of the workers and the site supervisor fell 100 feet to the ground, killing all with the exception of one of the workers who survived with serious injuries. The defendant avoided falling by hanging onto a lifeline before climbing back on to the balcony. The fifth worker, attached to a lifeline, was left suspended until he was pulled to safety.

Subsequent examination of the swing stage concluded that some of the its welds were cracked and/or deficient and its design was faulty. A proper inspection would have revealed some of these defects. It was the site supervisor’s responsibility to conduct a daily inspection.

All of the workers on the project had received fall arrest training. Workers testified that they understood that they needed to be properly tethered while working on the swing stages. Usually there were two workers on a swing stage using two dropped lifelines. If an additional worker was added, another lifeline would be dropped for his use. A worker’s failure to properly tether himself would likely result in his termination. Inexplicably, however, on the day of the accident, the five workers and the site supervisor had been working on the swing stage throughout the day with only two lifelines in place.

The site supervisor had the primary responsibility for supervising the workers, including ensuring that safety requirements were observed. However, the defendant was responsible for supervising the site supervisor and to instruct him as the required work. The defendant had also been required to interface with the Ministry of Labour when its officers had previously attended to inspect the site.

Application of the Law

Criminal negligence provides that that everyone is criminally negligent who: (1) in doing anything; or, (2) omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of others. Here the Crown’s theory of liability rested on (2). MacDonnell J. found that in order to prove the wrongful act the Crown was required to prove that: (3) the defendant’s omission constituted a failure to take reasonable steps to prevent bodily harm to the workers; and, (4) his disregard for safety constituted a marked and substantial departure from the conduct expected of a reasonable person in the circumstances. Moreover, as to the fault requirement, the Crown was required to prove (5) that the defendant adverted to an obvious and serious safety risk or gave no thought to that risk and the need to proceed carefully.

The defendant conceded and MacDonnell J. found that the defendant was bound by the workplace duty of care under s. 217.1 of the Criminal Code therefore engaging the defendant’s exposure under (3). He found that permitting the workers to board the swing stage absent a sufficient number of lifelines and ensuring their use constituted the defendant’s breach of provincial legislation, the workers’ training and industry standards and therefore a contravention s.217.1.

As to (4), he found that by permitting the workers to board the swing stage with their tools in a situation when the defendant had no information as to the capacity of swing stage and was aware there were only two lifelines in use was a wanton and reckless disregard for the lives and safety of the workers and a marked and substantial departure from what a reasonable supervisor would have done in the circumstances.

As to (5), MacDonnell J. found that the defendant’s question to the site supervisor about the number of lifelines in use showed that he adverted to the risk. He saw the danger but failed to act.

He concluded:

“I am satisfied beyond a reasonable doubt that Mr. Kazenelson’s failure to take reasonable steps to prevent bodily harm to the workers in relation to the work over which he had authority was a breach of the duty imposed on him by s.217.1 of the Criminal Code. I am also satisfied that in failing to take reasonable steps in that respect Mr. Kazenelson showed a wanton and reckless disregard for the lives and safety of the workers, and that his failure to act was a marked and substantial departure from what a reasonable supervisor would have done. The risk of serious harm was foreseeable, he had adverted to that risk, and he failed to act. Accordingly, I am satisfied beyond a reasonable doubt that Mr. Kazenelson was criminally negligent.”

Noteworthy in his analysis, MacDonnell J. rejected the Crown’s submission that the defendant’s alleged substandard performance on safety issues prior to the offence date formed an important part of the context in which to analyze whether his conduct amounted to criminal negligence: “Any inadequacy in the training or supervision by Mr. Kazenelson had nothing to do with why six workers got onto the swing stage without sufficient lifelines….”

On the issue of causation, he rejected the defendant’s submissions that the cause of the fatalities and serious injuries were two intervening acts: (1) the defective swing stage; and, (2) the decision of the deceased and injured workers to get onto the swing stage despite the absence of lifelines. As to (1), he found the risk of equipment failure was an objectively foreseeable risk evidenced by legislation requiring fall arrest training and equipment.  As to (2), any negligence by the workers and site supervisor was directly related to the defendant’s failure to comply with the workplace duty of care. This is a finding consistent with the principle accepted by the Court of Appeal for Ontario in regulatory workplace safety prosecutions that an employer is responsible and liable for the careless acts of its workers.

Mr. Kazenelson’s sentencing is scheduled for October 16.

Some Takeaways

First, a breach of s.217.1 does not necessarily show wanton or reckless disregard for worker safety. It is incumbent on the Crown to establish this element proving that the conduct of the defendant constituted a marked and substantial departure from the standard of care expected of a reasonable person in the circumstances. It is this requirement that really distinguishes regulatory (mere) departures from those sufficiently serious to warrant criminal conviction, subject to the Crown proving, subjectively, that the defendant adverted to the risk and ignored it or did not give it any thought.

Second, the findings of fact in this case are instructive as to the importance of the circumstances prevailing at the time of the alleged offence. Had the defendant not returned in the afternoon to the worksite or returned after the swing stage failed, he would not have been exposed to conviction because there would have been no evidence that his conduct played a direct role in the fatalities and serious injuries. This is not to suggest that a defendant’s physical presence is a prerequisite for conviction. Every case is different. Only that there has to be evidence of the specific breaches of the workplace duty of care by the defendant that are relevant to the risk materializing.

Third, in July 2012 Metron pleaded guilty to one count of criminal negligence causing death. On the facts of this case, had it proceeded to trial it would seem highly unlikely that it could have avoided conviction. Referring to s.22.1 of the Criminal Code which prescribes the requirements for corporate criminal liability for crimes rooted in negligence, the defendant and, perhaps, the site supervisor, would have been found to be a Metron “Senior Officer” engaging its liability given the latter’s wide definition (“…a representative…responsible for managing an important aspect of the organization’s activities…”) (In the agreed statement fact supporting Metron’s conviction, the site supervisor, as opposed to Mr. Kazenelson, is identified as the Metron senior officer.)