David Eaton
David Eaton, Lawyer, McInnes Cooper
 

In what appears to be the first case of the conviction of a front line supervisor under section 217.1 of the Criminal Code and sentencing to a substantial term of imprisonment, a court sentenced a front line supervisor to imprisonment for 3½ years for four counts of criminal negligence causing death and one of criminal negligence causing bodily harm. The 2015 conviction and the January 2016 sentence reflect the trends in occupational health and safety law of more charges, more prosecutions, more jail time and harsher sentences. It also sends a very clear message: the obligation under section 217.1 that everyone with authority to direct how another person does work or performs a task to “take reasonable steps to prevent bodily harm to that person or any other person arising from that work” is very real – and the consequences of failing to meet it grave. To learn more about personal liability exposure for occupational health and safety violations, read McInnes Cooper’s Legal Update: 3 Reasons for Directors, Officers and Supervisors to Take Occupational Health and Safety Personally.

THE ACCIDENT

Vadim Kazenelson was the project manager for the Metron Construction site. On Christmas Eve 2009, six workers with their tools were returning to the ground on a swing stage at the end of the work day. There were only two life lines available for the workers to attach their lanyards; only one worker attached himself. The project manager didn’t encourage or coerce the workers to travel together on the stage. He was aware that there were only two life lines and that life lines were required by law and industry standard for workers on a stage like that being used; he raised the issue with the site foreman (who reported to him), but was told “not to worry”. He wasn’t aware of the capacity of the stage or whether it had been properly assembled or installed.

The swing stage failed and the five workers not attached to life lines fell over 100 feet to the ground. Four died and only one survived, but with serious injuries.

THE CHARGES

The project manager was charged with four counts of criminal negligence causing death and one of criminal negligence causing bodily harm based on the duty under section 217.1 of the Criminal Code that requires everyone who has authority to direct how another person does work or performs a task to “take reasonable steps to prevent bodily harm to that person or any other person arising from that work.”

THE CONVICTION & SENTENCE

The court convicted the project manager in 2015. The court concluded there was a patent violation of occupational health and safety regulations and of the industry standard that was well-established and part of mandatory training for working at heights. The failure to take reasonable steps to stop the workers from the activity that they apparently undertook voluntarily was sufficient to breach the section 217.1 duty.

  • Criminal negligence requires that the accused’s action constitutes “wanton and reckless disregard for the lives and safety of others” so there must be proof that the accused’s conduct was a marked and substantial departure from that expected of a reasonable person in similar circumstances. The project manager’s knowledge of the industry standards and his failure to take reasonable steps to prevent the workers from travelling on the stage was sufficient to justify a conviction.
  • For criminal law purposes, it’s sufficient that the accused’s action or inaction was a significant contributing cause that was sufficient. The fact the workers were themselves negligent and acted contrary to their training and knowledge didn’t relieve the project manager of liability; his failure to take steps to prevent them was a sufficient contributing cause to support a conviction.

The court sentenced the project manager on January 11, 2016. The court made it clear the sentence must reflect the offender’s degree of responsibility as required by section 718.1 of the Criminal Code, which considers the seriousness of the crime’s consequences and the offender’s moral blameworthiness. Conduct that could be considered as deliberate endangerment would receive a more substantial prison term. The court imposed a 3½ year term of imprisonment.

  • Imprisonment wasn’t needed to deter the project manager from committing any further offences, to protect the public, to promote a sense of responsibility in the manager or to assist in his rehabilitation; he was of good character before and after the accident, devoted to his family and community and was genuinely remorseful. But a significant term of imprisonment was necessary to denounce the conduct and to deter others with authority over workers in potentially dangerous workplaces from breaching their legal duty under section 217.1 and to take reasonable steps to prevent bodily harm to workers.
  • The project manager’s failure was momentary; he didn’t ignore safety for days or weeks.  He didn’t encourage or coerce his workers to work under dangerous circumstances; in fact, they were all trained in working at heights and knew better. His failure was to take steps to prevent the workers from doing something they knew they shouldn’t do.

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McInnes Cooper prepared this article for information; it is not legal advice.  Consult McInnes Cooper before acting on it. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2016.  All rights reserved.

About the authors:

David Eaton is a lawyer at McInnes Cooper and a member of the firm’s Labour & Employment, Occupational Health & Safety and Litigation Teams. David’s extensive experience extends to criminal and quasi-criminal defence. You can reach David at david.eaton@mcinnescooper.com.