On 30 January 2018, the Ontario Court of Appeal released its decision on the appeal against the convictions and sentence of the project manager involved in a fatal ‘swing stage’ accident on Christmas Eve, 2009. Note that a ‘swing stage’ is a suspension scaffold of the type used for window cleaning on high buildings. Vadim Kazenelson, was the second individual to be convicted of criminal negligence under the 2004 (Bill C-45) amendments to the Canadian Criminal Code which impose specific legal duties with respect to workplace health and safety.
At trial, Kazenelson was convicted of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm after a swing stage collapsed and five workers fell more than 100 feet to the ground. The trial judge found that Kazenelson failed to take any steps to prevent workers from boarding the swing stage while knowing that there were only two lifelines available. This did not comply with a fundamental rule that all workers on a swing stage require fall protection because of the risk that the swing stage could fail. The trial judge found this conduct was exacerbated because Kazenelson had no information about the load capacity of the swing stage, yet allowed a total of seven people to board along with their equipment. For the trial judge, this behaviour showed wanton and reckless disregard for the lives and safety of the workers and represented a marked departure from the standards expected of a reasonable supervisor. Consequently, Kazenelson was sentenced to 3 ½ years on each count, to be served concurrently (at the same time).
On appeal, Kazenelson argued that the conviction was unreasonable for two reasons: the trial judge misapplied the test for criminal negligence and the trial judge misinterpreted the evidence. On sentencing, Kazenelson argued that the trial judge failed to consider the conduct of the workers, placed too much emphasis on general deterrence, and incorrectly found that Kazenelson put the employer’s interests ahead of the workers’
Ultimately, the Ontario Court of Appeal rejected all of Kazenelson’s arguments and supported the decision of the trial judge. It was noted that, in convicting Kazenelson, the trial judge’s reasons were clear, the test for criminal negligence was properly applied and all inferences were rooted firmly in findings of fact. With respect to the sentence, the Court of Appeal rejected arguments contending that it was too severe. Kazenelson argued that his moral culpability should have been reduced because the workers were contributorily negligent (they did not use fall protection despite being aware it was required when working on a swing stage). He also argued that the sentenced imposed overemphasised general deterrence, because this was a first offence and a momentary lapse in judgment. Finally, Kazenelson argued that the trial judge incorrectly inferred that he had allowed unprotected workers on the swing stage because of a desire to finish the work on the day of the accident.
The significance of the Court of Appeal decision is that it entirely supports the approach and analysis of the trial judge. Anecdotally, since the tragic events of 24 December 2009, Criminal Code prosecutions for workplace accidents have become more frequent, against both corporations and individuals, and the trends suggest that will continue. In addition, Ontario recently implemented significant increases in maximum penalties for contraventions of its Occupational Health and Safety Act. Employers and management should treat this decision as a stark reminder of the potential human and legal consequences for failing to exercise vigilance in complying with expected health and safety standards.
