Publication

Metron Project Manager Gets 3 ½ Years Jail Time for Workplace Accident

Published:

March 9, 2016

Author(s):

David Eaton, KC, Q. Arb

On January 11, 2016, the Ontario Superior Court of Justice sentenced a front-line supervisor to imprisonment for 3½ years for four counts of criminal negligence causing death and one of criminal negligence causing bodily harm stemming from a tragic workplace accident. The 2016 decision in R. v. Kazenelson appears to be the first case of the conviction of a front-line supervisor under section 217.1 of the Criminal Code and sentencing to a substantial term of imprisonment. The 2015 conviction and the January 2016 sentence reflect the trends in occupational health and safety law of more charges, more prosecutions, more jail time and harsher sentences against companies – and against directors, officers and supervisors personally. It also sends a very clear message: the obligation under section 217.1 that everyone with authority to direct how another person does work or performs a task to “take reasonable steps to prevent bodily harm to that person or any other person arising from that work” is very real – and the consequences of failing to do so can be grave.

The Accident. Mr. Kazenelson was the project manager for the Metron Construction site. On Christmas Eve 2009, six workers with their tools were returning to the ground on a swing stage at the end of the workday. There were only two lifelines available for the workers to attach their lanyards; only one worker attached himself. The project manager didn’t encourage or coerce the workers to travel together on the stage. He wasn’t aware of the capacity of the stage or whether it had been properly assembled or installed. But he was aware that lifelines were required by law and industry standard for workers on a stage like the one being used and that there were only two lifelines. He raised the issue with the site foreman (who reported to him) but was told “not to worry”. The swing stage failed and the five workers not attached to lifelines fell over 100 feet to the ground. Four died; only one survived, but with serious injuries.

The Charges. The Crown charged the project manager with four counts of criminal negligence causing death and one of criminal negligence causing bodily harm, based on the duty under section 217.1 of the Criminal Code. Section 217.1 requires everyone who has authority to direct how another person does work or performs a task to “take reasonable steps to prevent bodily harm to that person or any other person arising from that work.” Notably, the tragic accident also resulted in charges (and convictions) against the construction company in R. v. Metron Construction Corporation and against its owner and sole director personally in R. v. Swartz.

The Conviction. In 2015, the Ontario Superior Court of Justice convicted the project manager. The Court concluded there was a patent violation of occupational health and safety regulations and of the industry standard that was well-established and part of mandatory training for working at heights. The project manager’s failure to take reasonable steps to stop the workers from the activity they apparently undertook voluntarily was sufficient to breach the section 217.1 duty.

Marked Departure. Criminal negligence requires that the accused’s action constitutes “wanton and reckless disregard for the lives and safety of others” so there must be proof that the accused’s conduct was a marked and substantial departure from that expected of a reasonable person in similar circumstances. The project manager’s knowledge of the industry standards and his failure to take reasonable steps to prevent the workers from travelling on the stage was sufficient to justify a conviction.
Significant Contributing Cause. For criminal law purposes, it’s sufficient that the accused’s action or inaction was a significant contributing cause. The fact the workers were themselves negligent and acted contrary to their training and knowledge didn’t relieve the project manager of liability; his failure to take steps to prevent them was a sufficient contributing cause to support a conviction.

The Sentence. In January 2011, the Court sentenced the project manager. The Court made it clear the sentence must reflect the offender’s degree of responsibility as required by section 718.1 of the Criminal Code, which considers the seriousness of the crime’s consequences and the offender’s moral blameworthiness; conduct that could be considered as deliberate endangerment would receive a more substantial prison term. The Court imposed a 3½ year term of imprisonment:

Imprisonment wasn’t needed to deter the project manager from committing any further offences, to protect the public, to promote a sense of responsibility in the manager or to assist in his rehabilitation. He was of good character before and after the accident, devoted to his family and community and was genuinely remorseful. But a significant term of imprisonment was necessary to denounce the conduct and to deter others with authority over workers in potentially dangerous workplaces from breaching their legal duty under section 217.1 and to take reasonable steps to prevent bodily harm to workers.
The project manager’s failure was momentary; he didn’t ignore safety for days or weeks. He didn’t encourage or coerce his workers to work under dangerous circumstances; in fact, they were all trained in working at heights and knew better. His failure was to take steps to prevent the workers from doing something they knew they shouldn’t do.

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Occupational Health and Safety Team to discuss meeting your occupational health and safety obligations.

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Metron Project Manager Gets 3 ½ Years Jail Time for Workplace Accident

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