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INDUSTRY PERSPECTIVES: 2009 Christmas Eve swing stage tragedy approaches legal end

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by NORM KEITH and SHANE D. TODD

This column is the first of two parts which delves into the 2009 Christmas Eve swing stage tragedy where four workers fell 13 storeys to their deaths and another was seriously injured when their swing stage broke open at an apartment restoration work site. Currently, Vadim Kazenelson, the project manager at the work site, is awaiting his possible jail sentence after being found guilty of five criminal negligence charges in relation to the incident. Today's column will cover the incident and its investigation and the criminal and regulatory charges levied. Tomorrow's part will cover the implications for employers.
INDUSTRY PERSPECTIVES: 2009 Christmas Eve swing stage tragedy approaches legal end

The tragic saga of a quadruple fatality on a construction site on Christmas Eve 2009 has finally come to legal conclusion with the criminal conviction and sentencing of the project manager overseeing the project. On June 26, 2015, following a trial, Vadim Kazenelson (Mr. Kazenelson), who was overseeing the project for Metron Construction Company (Metron), was found guilty of five counts of criminal negligence in relation to the accident. Mr. Kazenelson has had sentencing submissions completed before the trial judge.

The Crown argued that a penitentiary sentence of four to five years was appropriate, and that the sentence should be at the upper range. The defence argued that the appropriate sentence in this case was 12 months to two years of incarceration. The defence argued that four years imprisonment overshoots the mark for deterrence purposes, and that there is a real risk of sentencing imbalance, given that imprisonment is a blunt instrument.

At the conclusion of submissions, Justice MacDonnell commented that there is no sentencing precedent that could easily be applied to this case, and as a result, sentencing would require much more thought. Justice Ian MacDonnell did note that it is common ground that incarceration should be imposed; the only question remaining is the length of incarceration.

Justice MacDonnell adjourned the sentencing decision until Jan. 11, 2016.

As we approach the legal end of the Metron saga, with family pain and suffering that continues for their losses, we look back on the accident and the charges that flowed from it to parse out important health and safety advice for employers.

The accident and investigation

In August 2009, Metron was retained to repair concrete balconies on two high-rise apartments. As was its normal practice, Metron hired a project manager and a site supervisor to oversee the project. Mr. Kazenelson was retained by Metron as its project manager. Mr. Kazenelson owned and operated his own construction company and according to reports, came highly recommended as an experienced and qualified project manager.

Work on the construction project commenced under Mr. Kazenelson's management in the fall of 2009. The project was originally planned for completion by November 30, 2009, but various delays prevented Metron from completing the work by that time. In December 2009, the owners of the building offered Metron a bonus payment of $50,000 if the work could be completed by the end of the month. It is reported that work was far enough along on the project that it could have been completed by the end of December.

On Dec. 24, 2009, Metron workers were working on the 14th floor of one of the high-rise apartment buildings. At approximately 4:30 p.m., six workers — including the site supervisor — climbed onto a swing stage (a suspended work platform) to travel to the ground. The swing stage collapsed. Four workers fell to their death, a fifth worker survived the fall but was seriously injured, and the sixth worker did not fall because he was stopped by a properly secured lifeline.

A post-incident investigation revealed that three of the deceased workers — including the site supervisor — had levels of marijuana in their systems consistent with recent consumption, and there were only two lifelines in the area serviced by the swing stage. It was also discovered that the design and assembly of the swing stage was faulty. The manufacturer had not properly tested it or obtained the approval of an engineer in relation to its design. As designed, the swing stage was not safe for even two workers to use. The welding was inconsistently done and inadequate, and the welds were already cracked and broken prior to the swing stage's collapse. Finally, when it was delivered to the construction project, the swing stage had no manual, markings, serial numbers, or labels regarding maximum capacity.

The criminal and regulatory charges

The Ministry of Labour and Toronto Police Services both investigated the accident. After completing its investigation, the Ministry of Labour charged Metron, Joel Swartz — Metron's president and the sole director of the company — Swing N Scaff Inc. — the company that supplied the swing stage — and Patrick Deschamps — a director of Swing N Scaff Inc. — with a total of 61 offences under the Occupational Health and Safety Act, R.S.O. 1990, ch. O.1 (OHSA).

On July 13, 2012, Mr. Swartz pleaded guilty to failing, as a director, to take all reasonable care to ensure that:

workers did not use a defective or hazardous swing stage;

the swing stage was not loaded in excess of the weight it was meant to bear;

workers were adequately trained in the use of fall protection by a competent person; and,

Metron prepared and maintained written training and instruction records for each worker.

Mr. Swartz was fined $90,000 and a 25 per cent victim surcharge was imposed as required by the Provincial Offences Act, RSO 1990, c. P. 33.

On Dec. 4, 2014, Swing N Scaff Inc. pleaded guilty to failing to ensure that a suspended platform and/or a component was in good condition. Swing N Scaff Inc was fined $350,000 and a 25 per cent victim surcharge was imposed. Patrick Deschamps also pleaded guilty to failing, as a director, to take all reasonable care to ensure a suspended platform was in good condition and that a platform weighing more than 525 kilograms was designed by a professional engineer in accordance with good engineering practice. He was fined $25,000 for each count, plus the required victim surcharge.

After completing its investigation, the Toronto Police Services also charged Metron and Mr. Kazenelson with criminal negligence under the Criminal Code (the Code).

On June 15, 2012, Metron pleaded guilty to one count of criminal negligence causing death. By doing so, Metron became the first Ontario corporation convicted of criminal negligence under the Code as amended by Bill C-45. Metron was sentenced by Justice Bigelow of the Ontario Court of Justice on July 13, 2012 to a fine of $200,000. The Crown had requested that a fine of $1 million be imposed by the court, and appealed the sentence to the Ontario Court of Appeal.

The Court of Appeal found that the sentencing judge erred by relying on sentencing case law under the OHSA, and he failed to appreciate the higher degree of "moral blameworthiness and gravity associated" with a criminal conviction. Further, the sentencing judge erred by treating Metron's ability to pay as prerequisite to the imposition of a fine. On this point, the court noted that economic viability of an organization may be a factor if the organization fills an important place in the market or is a significant employer. However, the prospect of fining a company into bankruptcy should not be precluded in an appropriate case. The Court of Appeal concluded that the original fine was unfit and allowed the appeal. It imposed a fine of $750,000 on Metron.

Mr. Kazenelson did not plead guilty and elected to proceed to trial in relation to four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm filed against him. On June 26, 2015, following a trial, Justice MacDonnell delivered his verdict that Mr. Kazenelson was guilty on all five counts. The court has not yet imposed a sentence on Mr. Kazenelson, but given the number and severity of charges against him it is likely he will be sentenced to serve a custodial sentence.

The concluding part to this column will appear in tomorrow's DCN. Send comments and Industry Perspectives column ideas to editor@dailycommercialnews.com.

2 comments

  • # 1

    Tim Dove

    A conviction may create a ripple effect,far and wide in construction and restoration as it applies to working at heights and other worker applications.
    The real issue is in the Ministry regulations of the term a competent person. Would this require a competent supervisor for all occupations?
    All are to blame,as even the workers are aware of gravity and basic fall arrest requirements. Most restoration companies require workers to provide there own fall arrest and P.P.E. and sign training and instruction forms as to circumvent liability for the owner. Today's mandatory W.S.I.B rates for Suspended equipment operators are at $18.91 per $100.00 paid.One of the highest occupational rates in Ontario. This rate penalizes the companies that provide and implement expensive health and safety training and supervision. With 34 years of experience in swing stage and bosun chair work,in restoration.( meets the term competent)Why would a supervisor/project manager expose themselves to fines and possible jail term for menial compensation. I would like to suggest that working at heights become a basic trade prerequisite or inclusion.Changes to the regulations in all occupations should require a competent supervisor,with the same ramifications.
  • # 2

    Tim Dove

    Employment standards does not protect an employee with less than 90 days of employment with in the company. This circumvents the right to refuse as a employee refuses dangerous work they are fired.Also called a reprisal for complying with the Ministry of labour regulations. One quick way to become unemployed if one follows regulations.

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