The cases are few and far between. The addition of section 217.1 of the Criminal Code has resulted in an expansion of the criminal law into the work place. The degree of fault or moral blameworthiness attributed to the accused is the factor that determines whether the actions that resulted in the workplace accident are prosecuted criminally or as a provincial regulatory offence (R. v. Katsheshuk Fisheries Limited, 2014 CanLII 50665 (NL PC)).
A recent case highlights the importance of workplace health and safety and of the potential serious consequences of failing to do so – not just in terms of potential serious injury to employees, but also for employers, managers and supervisors. A few days ago the Ontario Superior Court of Justice released the sentencing decision in R. v. Kazenelson. He received a 3 and ½ year sentence.
Mr. Kazenelson was the Project Manager for a construction company engaged in the repair of the balconies of two high-rise apartment buildings in Toronto. The company was on a tight schedule to complete by work by a deadline that was fast approaching. The company used motorized swing stages anchored to the roof of the buildings. Ordinarily there would be only two workers on a swing stage at any one time. On 24 December 2009, there were six workers. However, there were only two lifelines with harnesses, anchored to the roof. The Project Manager knew that there were only two lifelines. Earlier in the day the supervisor told him not to worry. At the end of the day, the workers go tonto the swing stage with their tools to go down – they were some 100 feet up. The swing stage collapsed and four workers fell to their death, and one was seriously injured. The supervisor was among those killed.
The Project Manager was convicted of five counts of criminal negligence under the Criminal Code. Section 271.1 of he Code provides: “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.”
The general purposes of sentencing are set out in section 718 of the Code. The court noted with respect to Mr. Kazenelson:
“[23] It has not been suggested that a term of imprisonment is required in order to deter Mr. Kazenelson from committing further offences, to protect the public by separating him from society, to promote a sense of responsibility in him, or to assist in his rehabilitation. He was of good character prior to the accident and he has continued to be of good character in the six years since. He is hardworking, devoted to his family, and involved in his community. He is quite unlikely to commit further criminal offences of any kind, and he is remorseful. … “
Sentencing must be proportionate to the gravity of the offence and the degree of responsibility of the offender (section 718.1). The collapse of the stage was not due to a fault on the part of Mr. Kazenelson. The criminal negligence was based “solely on the breach of duty inherent in his failure to ensure that the workers did not use the swing stage without lifelines.” He put the interests of completing the work ahead of safety of the workers working under his authority.
A sentence must take into consideration that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. However, in R. v., Linden, 2000 OJ 2789, the Ontario Court of Appeal noted: “The cases demonstrate that criminal negligence causing death can be committed in so many different ways that it defies the range-setting exercise.”
The seriousness of the offences and their consequences cannot be doubted: four men lost their lives and a fifth suffered devastating and life-altering injuries.
“[44] On the other hand, Mr. Kazenelson’s breach of duty was more than a momentary lapse. … From the moment he joined them, he was aware that they were working 100 feet or more above the ground without lifelines. His duty to take steps to rectify this dangerous situation was fully engaged, and it remained engaged for some time. He not only did nothing, he permitted all six workers to board the stage together with their tools, and he did so in circumstances where he had no information with respect to the capacity of the stage to safely bear the weight to which it was being subjected. … Mr. Kazenelson adverted to the risk, weighed it against Metron’s interest in keeping the work going, and decided to take a chance. That is a seriously aggravating circumstance in relation to the moral blameworthiness of his conduct.”
The court concluded that “the sentence that would be proportionate to the gravity of Mr. Kazenelson’s offences and his degree of responsibility is a term of incarceration of 3½ years imprisonment on each count. Those sentences will be served concurrently with one another.”
In 2012, the construction company, Metron, entered a plea of guilty to a count of criminal negligence causing death arising out of those events, though the acts or omissions of its “senior officer,” the supervisor, who was killed in the accident. “Senior Officer” was defined as “a representative who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of the organization’s activities. A corporation may be party to an offence through its representatives (section 22 of the Code).
“[33] In all the circumstances including the fines and surcharges totalling $112,500 imposed upon Mr. Swartz [the principal and owner of Metron] for breaches of health and safety legislation related to this incident, the financial status of the corporation, the prior good character of the corporation and the seriousness of the breaches of the corporation’s legal duties resulting in the tragic death of 4 workers and the serious injury of another I am satisfied that a fine of $200,000 plus the Victim Fine Surcharge of 15% or $30,000, which results in a total financial penalty to Mr. Swartz and the corporation arising from this incident of over 3 times the net earnings of the business in its last profitable year which ended a few months before this incident, is the appropriate disposition in this case and should send a clear message to all businesses of the overwhelming importance of ensuring the safety of workers whom they employ.”
In short, while there are few cases dealing with criminal negligence in the workplace, there are clearly many good reasons, not just for employers, but also others, such as managers and supervisors, to be careful.
- V. Kazenelson, 2016 ONSC 25; R. v. Metron Construction Corporation, [2012] OJ No 3649.