Construction Project Manager Receives Prison Sentence for Role in Workplace Fatality

Following a landmark criminal case in Canada, a construction project manager was sentenced to 3 1/2 years in prison on January 11, 2016.

Mr. Kazenelson, an employee of Metron Construction Corporation (“Metron”), was convicted of four counts of criminal negligence causing death and one court of criminal negligence causing bodily harm. These charges stemmed from a “swing stage” (a suspended work platform) collapse that killed four workers and severely injured a fifth in Toronto on December 24, 2009.

Six workers were on the swing stage, outside a residential apartment building undergoing balcony repairs, when it broke in the middle and collapsed. Four workers died from the 13 story fall as they were not wearing lifelines.

Mr. Kazenelson is the first individual to be convicted and sentenced to a prison term under s. 217.1 of the Criminal Code. This section of the Criminal Code was introduced in 2004, following the Westray Mine disaster, and encompasses criminal liability for organizations and corporate officers who fail to take reasonable steps to prevent death or bodily harm.

The court found that Mr. Kazenelson had directed and/or permitted six workers to work on the swing stage when he knew or should have known that it was unsafe to do so; directed and/or permitted the six workers to board the swing stage knowing that only two lifelines were available; and permitted persons under the influence of drugs to work on the project.

Metron was fined $750,000 for criminal negligence under the Criminal Code; (the amount was increased on appeal from the $200,000 fine set by the trial judge).

Metron’s criminal liability flowed from the actions of Mr. Kazenelson, who Metron admitted was a “senior officer” of Metron. Mr. Kazenelson’s actions were taken to be the actions of Metron for the purposes of Metron’s Criminal Code liability.

Five parties were found guilty of safety-related offences related to the accident: Metron, a director of Metron, Swing N Scaff Inc., a director of Swing N Scaff Inc. (all of which received fines), and Mr. Kazenelson.

Safety fines imposed for the accident totaled $1,240,000.

Ministry of Labour investigators found that the welds on the platform of the swing stage were inadequate.

 

Jonathan D. Cocker heads the Firm’s Environmental Practice Group in Canada and is an active member of firm Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environment, health and safety matters, including product content, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, extended producer responsibilities and contaminated lands matters. He appears before both EHS tribunals and civil courts across Canada. Mr. Cocker is a frequent speaker and writer on EHS matters, an active participant on EHS issues in a number of national and international industry associations and the recent author of the first edition of The Environment and Climate Change Law Review (Canada chapter) and the upcoming Encyclopedia of Environmental Law (Chemicals chapter).

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