skip to main content
Back to all blog posts

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.

Related Blogs

Posted in: Ontario Court of Appeal | Ontario

Insights EnergyInsider
Ontario Court of Appeal Established New Privacy Rights – Utility Consumption Data and Grow Ops By Paige Backman Aug 21, 2017 If you are a utility monitoring consumption data, think twice before providing any of that information to the police. You may need to ensure the police first provide you with a warrant or other judicial authorization specifically requesting the information. The Ontario Court of Appeal, distinguis...

Posted in: Ontario Court of Appeal | Ontario | Practice & Procedure

Insights EnergyInsider
Ontario Court of Appeal Clarifies Procedures for Communicating with Expert Witnesses By Zoë Thoms May 11, 2015 In Moore v. Getahun (2015 ONCA 55), the Ontario Court of Appeal recently provided much needed clarification to the limits governing appropriate communications between lawyers and expert witnesses following the 2014 Superior Court decision of Justice Wilson (2014 ONSC 237), which called into quest...

Posted in: Ontario | Climate Change / Renewables

Insights EnergyInsider
Once Again, All Current Allowances Sold Out in Ontario’s Joint Cap and Trade Auction By David Stevens May 23, 2018 On May 23, 2018, the Ontario government posted the results of the second joint Ontario, Quebec, California auction of greenhouse gas emission allowances, held May 15, 2018. The report shows that all current vintage allowances from each of the three jurisdictions were sold. Additionally, around on...