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When your HSE program at work becomes a CRIMINAL CODE matter and supervisors are charged!

Three and half YEARS FEDERAL PRISON TIME for Supervisor under Section 217.1 of the Criminal Code.   Why do it right at work, why enforce the rules and laws, why measure competency or compliance, well three and half years of federal inside time is good reminder for starts never mind the law suits!

Kazenelson, was convicted of four charges of criminal negligence causing death and one charge of criminal negligence causing bodily harm. While the Kazenelson case is one of only eight in Canada where an individual or company has been charged under Section 217.1  additions to the Criminal Code, employers must take proper notice of the significant risk of both financial penalties and criminal liability that may arise from violations of workplace safety requirements.

The case is notable for a number of reasons. One main reason is because no Ontario court has previously explored or explained how the provisions of the Occupational Health and Safety Act could be used to assess an allegation of criminal negligence. In Kazenelson, the court confirmed that non-compliance with the OHSA or its regulations is not, in and of itself, proof that a person has contravened section 217.1 of the Criminal Code, which states that 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.” However, the court indicated that, because the OHSA and its regulations are designed to ensure workplace health and safety, they can “assist in identifying what steps it is reasonable to expect a person subject to a duty under s. 217.1 to take to prevent bodily harm in the workplace.”

In Kazenelson, the court found that the fall protection provisions in the Construction Projects regulation were reasonable steps to take to prevent harm to workers working at height.

The court’s decision may seem unclear because it holds that non-compliance with health and safety legislation is not, in and of itself, a failure to take reasonable precautions to prevent bodily harm while, at the same time, says that health and safety legislation can assist in identifying reasonable precautions. However, the court was likely indicating that unlegislated measures could also be reasonable precautions. Indeed, in Kazenelson, the court also considered information provided during training sessions Kazenelson attended at the Construction Safety Association (now the Infrastructure Health and Safety Association) as reinforcing the reasonableness of using fall protection when working on a swing stage.

The court found that the totality of Kazenelson’s conduct amounted to wanton and reckless disregard for the lives or safety of the workers on the swing stage. The court’s ruling demonstrates that positive past behaviour can be displaced by the decision not to take positive steps to prevent harm where the circumstances require action to be taken. As such, the criminal negligence analysis can focus on a specific, narrow time period and examine it in isolation from one’s broader conduct in the workplace.

Kazenelson will be sentenced in January. He can appeal his convictions or any sentence imposed. Additionally, OHSA charges remain pending and a mandatory coroner’s inquest will be held when all other litigation is over. It, therefore, appears that the Metron Construction saga will continue, in some form, for some time. Thus, the court determined that Kazenelson was aware each worker must be tied off separately by law but inappropriately concluded that it was not worth doing so in light of the delay to the project.

While his conviction is under appeal, we note that Kazenelson’s recent prison sentence is just part of the legal fallout of the Metron swing stage collapse. In addition to Kazenelson’s prison sentence:

  • Metron pled guilty to criminal negligence causing death under the Criminal Code and was ultimately fined $750,000;
  • Metron’s president pled guilty to charges under the OHSA and was fined $90,000 (plus 25% victim surcharge);1
  • Swing N Staff Inc. (the provider of the defective swing stage) pled guilty to charges under the OHSA and was fined $350,000 (plus victim surcharge); and
  • A director of Swing N Staff Inc. pled guilty under the OHSA and was fined a total of $50,000 (plus victim surcharge).
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