TORONTO – A supervisor jailed for a scaffolding collapse in which four men were killed and another was seriously hurt lost his bid on Tuesday to challenge his criminal-negligence conviction and 3 1/2-year sentence.
In dismissing his appeal, Ontario’s top court agreed with the trial judge that Vadim Kazenelson had failed to take reasonable steps to prevent what was one of the province’s worst workplace accidents. The appeal, the court found, was largely based on arguments made at trial.
“The trial judge’s reasons for conviction and sentence are clear and the chain of reasoning is rooted firmly in his findings of fact,” the Court of Appeal concluded. “He made no legal or other errors.”
The case arose on Christmas Eve 2009 after five of six men working for Metron Construction fell about 13 storeys when the swing stage they were on collapsed without warning. Four were killed and one was badly hurt. The sixth worker, who was tethered as required under provincial law and by industry practice, was left dangling in mid-air but was not injured.
Kazenelson, Metron’s project manager, was with the workers on the scaffolding when it collapsed. However, he had been holding onto one of only two available safety lifelines and was able to grab a nearby balcony and pull himself to safety, court records show.
Evidence was that the supervisor had always strictly enforced the tethering – except on the day of the collapse, when he was running out of time to see the work completed.
Superior Court Justice Ian MacDonnell convicted Kazenelson in June 2015 of four counts of criminal negligence causing death and one of causing bodily harm. It was one of the first cases involving a criminal negligence conviction for a workpalce accident under 2004 changes to the Criminal Code that require supervisors to take reasonable steps to prevent bodily harm to subordinates.
In convicting him, MacDonnell found that Kazenelson knew only two tethers were available on the swing stage for the six workers but failed to rectify the situation.
“(Kazenelson) was aware that they were working (30 metres) or more above the ground without lifelines,” the Appeal Court quoted MacDonnell as saying. “He not only did nothing, he permitted all six workers to board the stage together with their tools, and he did so in circumstances where he had no information with respect to the capacity of the stage to safely bear the weight.”
On appeal, Kazenelson argued his behaviour did not show a “wanton and reckless disregard” for the workers that would amount to criminal negligence, and MacDonnell’s verdict was therefore unreasonable.
The Appeal Court disagreed, saying the question was whether Kazenelson’s conduct constituted a “marked and substantial departure” from what a reasonable supervisor would have done in the circumstances, which should have included considering what would happen if the stage collapsed.
“The trial judge fully and adequately addressed the factual issues in the case and the conclusion to which their resolution led him,” the Appeal Court ruled.
In appealing the 3 1/2-year sentence on each count to be served concurrently, Kazenelson argued among other things that MacDonnell had ignored the role the workers played in the tragedy.
The Appeal Court disagreed, noting prison time was necessary to denounce Kazenelson’s conduct and to deter others in authority from failing to address potentially dangerous workplace situations.
“The desire to complete the work that day led the appellant to compromise his duties,” Justice Peter Lauwers wrote for the panel. “The trial judge wrestled anxiously and carefully with the issue of the appellant’s moral blameworthiness and its effect on the sentence (but) I see no error in principle and no merit in the argument that the sentence is unfit.”