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Posted in: Ontario Court of Appeal | Ontario | Health and Safety

Feb 5, 2018

Court of Appeal Upholds Decision in Kazenelson Criminal Negligence Case

By Cynthia R. C. Sefton

Individuals in Canada who have the authority to direct how another person does work or performs a task have a duty under s. 217.1 of the Criminal Code to take reasonable steps to prevent bodily harm to that person or to any other person from that work or task. All such individuals, who are also likely to have duties as supervisors under provincial health and safety legislation, should read the January 30, 2018 decision of the Ontario Court of Appeal upholding the conviction and sentencing of Vadim Kazenelson, the project manager at the time of a tragic swing stage collapse in which five workers were killed and one was seriously injured (see our previous article on the trial decision).

The trial decision was the first conviction of an individual supervisor under s. 217.1 of the Criminal Code. The defendant argued that the approach of the trial judge “stretches penal negligence too far,” and that even if Mr. Kazenelson did breach s. 217.1, his conduct did not rise to the level of criminal negligence because his conduct did not show a wanton and reckless disregard for the workers. The Court of Appeal rejected the defendant’s argument that other circumstances, including that the deceased workers themselves did not see the need to use a lifeline, did not relieve Mr. Kasenelson’s guilt. The trial judge had correctly identified the issue as whether the project manager’s conduct was a “marked and substantial departure from what a reasonable supervisor would have done in the circumstances.” There were insufficient lifelines for the number of workers who were on the swing stage, including the defendant himself. As to sentence, an appeal court attaches “a highly deferential standard” to the trial decision. An appeal court will only interfere with that sentence if the sentencing judge made an error of law or principle that results in a “demonstrably unfit” sentence. The defendant argued that the trial judge failed to properly consider the contributory negligence of the workers to decrease the defendant’s moral blameworthiness. This was rejected on appeal for the reasons given by the trial judge, that this ignores the reality that a worker’s acceptance of dangerous working conditions is not always a truly voluntary choice and would undermine the purpose of the Criminal Code duty to impose a legal obligation on management for workplace safety.

It is unknown at this time if the defendant will attempt to seek a further appeal.