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Home > Our Insights > Construction Project Manager Sentenced to 3½ Years for Workplace Accident in R. v. Vadim Kazenelson (aka “Metron”)
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Construction Project Manager Sentenced to 3½ Years for Workplace Accident in R. v. Vadim Kazenelson (aka “Metron”)

Published:

March 9, 2016

Author(s):

  • David Eaton, KC

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In what 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, a court 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. 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. 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 meet it grave. To learn more about personal liability exposure for occupational health and safety violations, read McInnes Cooper’s Legal Update: 3 Reasons for Directors, Officers and Supervisors to Take Occupational Health and Safety Personally.  To learn more about the legal defence of due diligence to occupational health and safety charges, read McInnes Cooper’s Legal Update: The Legal Defence of Due Diligence – Top 5 FAQs.

THE ACCIDENT

Vadim 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 work day. There were only two life lines 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 was aware that there were only two life lines and that life lines were required by law and industry standard for workers on a stage like that being used; he raised the issue with the site foreman (who reported to him), but was told “not to worry”. He wasn’t aware of the capacity of the stage or whether it had been properly assembled or installed.

The swing stage failed and the five workers not attached to life lines fell over 100 feet to the ground. Four died and only one survived, but with serious injuries.

THE CHARGES

The project manager was charged 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 that 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.”

THE CONVICTION & SENTENCE

The court convicted the project manager in 2015. 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 failure to take reasonable steps to stop the workers from the activity that they apparently undertook voluntarily was sufficient to breach the section 217.1 duty.

  • 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.
  • For criminal law purposes, it’s sufficient that the accused’s action or inaction was a significant contributing cause that was sufficient. 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 court sentenced the project manager on January 11, 2016. 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 this topic or any other legal issue.


McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2016.  All rights reserved.  McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it.  You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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  • 5 “Legal” Reasons Why Natural Resource Companies Should Care About Corporate Social Responsibility (CSR)

    Dec 10, 2014

    “Corporate Social Responsibility” (CSR) as a concept has been floating around in business-speak for years – but stakeholders in the mining…

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    Publication
  • 5 Tips to Manage Employer (Social) Host Liability

    Dec 5, 2014

    This article has been updated as of December 11, 2020. Employers host numerous events throughout the year – summer and holiday office…

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    Publication
  • Complying with Canada’s Anti-Spam Legislation (CASL): A blueprint for the construction industry

    Dec 1, 2014

    The construction industry - project owners, contractors, subcontractors and trades - might be relaxing, ignoring the hype around Canada’s…

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    Publication
  • Egg Films Epilogue: 5 Key Implications of NS Union Certification Based on “Industry” Dependence

    Nov 27, 2014

    Recently, the NS Court of Appeal confirmed that a union can be certified as the bargaining agent of employees based merely on their dependence…

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    Publication
  • Complying With Canada’s Anti-Spam Legislation (CASL): Protecting Directors & Officers from Personal Liability

    Oct 14, 2014

    CASL’s anti-spam sections came into force on July 1, 2014. Every organization that CASL affects should now be complying with it – and their…

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    Publication
  • 5 New Obligations on NB Employers Effective September 1, 2014 in NB Employment Standards Act

    Sep 30, 2014

    Effective September 1, 2014 the NB government implemented five important changes to the NB Employment Standards Act – the minimum standards…

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    Publication
  • The Top 5 Corporate Governance Best Practices That Benefit Every Company

    Sep 16, 2014

    This publication has been updated as at August 25, 2022. Many believe that only public companies or large, established companies with many…

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    Publication
  • Canada’s Temporary Foreign Worker Program Overhaul

    Jul 9, 2014

    On June 20, 2014 the Federal Government announced a major overhaul of Canada’s Temporary Foreign Worker Program. With stringent enforcement…

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    Publication
  • SCC Sets Test for – and Defines Rights of – Aboriginal Title in Canada

    Jun 26, 2014

    On June 26, 2014, in its groundbreaking decision on Aboriginal title in Read the SCC’s decision in Tsilhqot’in Nation v. B.C., 2014 SCC 44,…

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    Publication
  • Legal Update: Feds Crack Down On Employer Abuse Of Temporary Foreign Worker Program

    Apr 3, 2014

    On March 28, 2014 the Federal Government tabled Bill C-31 to implement the 2014 Federal Budget – including broad authority to impose cash…

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    Publication
  • Legal Update: More Changes to Federal Temporary Foreign Worker Program

    Jan 21, 2014

    On December 31, 2013, amendments to the Immigration and Refugee Protection Regulations and new Ministerial Instructions changing the Federal…

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    Publication
  • Privacy in Computer Contents: Supreme Court of Canada Picks Up Where It Left Off in R. v. Vu

    Nov 8, 2013

    On November 7, 2013, the SCC decided police require specific authorization in a search warrant to search the data in a computer because of the…

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    Publication
  • Privacy Trumps Safety: SCC Strikes Down Mandatory Random Alcohol Testing Policy

    Jul 2, 2013

    On June 14, 2013, the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp…

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    Publication
  • Legal Alert: Federal Temporary Foreign Worker Program Changes

    Apr 30, 2013

    Note: Effective December 31, 2013, the Federal Government made additional changes to the Federal Temporary Foreign Worker Program. Click here to…

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    Publication
  • Students with Learning Disabilities Have a Right to Education Comparable to that of the General Student Population in Moore v. British Columbia (Education)

    Jan 8, 2013

    On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…

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    Publication
  • Supreme Court of Canada Confirms Employees May Have a Limited Reasonable Expectation of Privacy In Work Computer in R. v. Cole

    Nov 28, 2012

    On October 19, 2012 the Supreme Court of Canada (SCC) decided that a teacher criminally charged with possession of child pornography and…

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    Publication
  • Legal Alert: SCC Finds Limited Reasonable Expectation of Privacy In Work Computer But Evidence Still Admissible

    Oct 22, 2012

    Mr. Cole was a high school teacher with an employer owned and issued laptop computer.  He also used it for incidental personal purposes, which…

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    Publication
  • Court Confirms Reviewing Courts Should Give Early Due Deference to Administrative Decision-Makers

    Jul 10, 2012

    On March 16, 2012, the Supreme Court of Canada (“SCC”) confirmed the decision of the N.S. Court of Appeal, reinstating the N.S. Human Rights…

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    Publication
  • “Canada Day” Or “July 1st”: Which Is The “Holiday” For Employees?

    Jun 14, 2012

    As any Canadian knows, July 1st – Canada Day – is the first long weekend of the summer; or is it?  This year, July 1st falls on a Sunday. …

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    Publication
  • 10 Tips to Deal with Employee Discipline for Social Media Use

    Mar 1, 2012

    Social media represents a profound cultural shift and employers must adapt if they want to avoid unnecessarily – and potentially costly –…

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    Publication
  • Alert: Significant Changes to NS Human Rights Complaint-Handling Procedure Effective January 1, 2012

    Jan 5, 2012

    Effective January 1, 2012, NS’s Human Rights Commission will receive, investigate and handle complaints under NS’s Human Rights Act under a…

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    Publication
  • Multiple Extensions of Termination Date Nullify Termination Notice

    Dec 19, 2011

    In a decision with application to Atlantic Canada, the Ontario Court of Appeal found that an employer’s multiple extensions of a terminated…

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    Publication
  • NB Court of Appeal Upholds Mandatory Random Alcohol Testing Policy

    Aug 6, 2011

    Note: On June 14, 2013 the Supreme Court of Canada issued its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v.…

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    Publication
  • Ontario Court of Appeal Finds Reasonable Expectation of Privacy in Work Computer

    May 6, 2011

    In March 2011, the Ontario Court of Appeal found that an employee had a limited expectation of privacy in the contents of a work computer. The…

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    Publication
  • Changes to Federal Foreign Worker Regulations Effective April 1, 2011: A Serious Issue for Employers

    Mar 6, 2011

    In the midst of a sea of change, the Federal Government has enacted Regulatory changes significantly impacting employers who hire foreign…

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    Publication

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