Canadian Occupational Safety

10 Canadian Occupational Safety www.cos-mag.com Inaction amounts to criminal negligence Latest development in Metron case convicts supervisor of 5 charges I t has been more than fi ve years since Christmas Eve 2009, when fi ve men fell from a swing stage at the 13th storey of a Toronto apartment building. Four of the men were killed and the lone survivor was very seriously injured. Litigation arising from the accident, which occurred on a project undertaken by Metron Construction, continues. The most recent development occurred on June 26 when the project manager, Vadim Kazenelson, was convicted of four charges of criminal negligence causing death and one charge of criminal negligence causing bodily harm. The case is notable for a number of reasons. One main reason is because no Ontario court has previously explored or explained how the provi- sions of the Occupational Health and Safety Act could be used to assess an allegation of criminal negligence. In Kazenelson, the court confi rmed 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 regula- tions are designed to ensure workplace health and safety, they can "assist in identifying what steps it is reason- able 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 reason- able 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 reason- ableness of using fall protection when working on a swing stage. Another notable point in the deci- sion is the court's consideration of whether the decision of the workers to board the swing stage without lifelines indicated defi cient training. The court considered that four of the fi ve men who fell had received fall arrest train- ing and the fi fth worker was aware of the requirement to tie off. Ultimately, the court concluded that the decision of the workers to board the swing stage, without an adequate number of lifelines, could not be attributed to a defi ciency in their training. This is notable because it means errors or non-compliant action by a worker is not automatically attributable to a defi ciency in instruction. Finally, the decision is notable because it provides insight into the scope of behaviour that will be con- sidered when assessing a charge of criminal negligence. At trial, the court heard from various workers about pos- itive circumstances regarding the use of fall protection on the project. Some workers testifi ed they never worked on a swing stage without being tied off and never saw anyone do so. Workers also testifi ed that if Kazenelson had caught them working without being tied off, they would have been fi red. Based on that evidence, the court con- cluded that "everyone who worked at the site was well aware of the impor- tance of being tied off to a lifeline while working on a swing stage." The court also found Kazenelson was not negligent for not noticing cracks in certain welds on the swing stage when he initially inspected it. The cracks were also not noticed by certifi ed welders who did the welding, anyone from the company that supplied the swing stage and the very experienced worker who assembled the swing stage and specifi cally checked the welds. The court also held that Kazenelson was not negligent in delegating the responsibility for the daily inspections of the swing stages to the site supervisor and workers. Despite all of this, Kazenelson was convicted of criminal negligence because of his actions on Dec. 24, 2009. The court found that, shortly before the accident, Kazenelson had ascended to the 13th fl oor of the building. He did so either by taking the involved swing stage from the ground or by taking it from the 12th fl oor that allowed the swing stage to be accessed from a balcony. Regardless of exactly how he ascended to the 13th fl oor, the court found that Kazenelson would have been aware that there were only two lifelines available for use by those on the swing stage. The court also considered that, when Kazenelson arrived at the 13th fl oor, he asked the site supervisor about lifelines. The site supervisor said "Don't worry about it" and Kazenelson took no other steps. Finally, Kazenelson permitted six workers to board the swing stage and even assisted workers in loading their equipment onto it. The court found that the totality of Kazenelson's conduct amounted to wanton and reckless disregard for the lives or safety of the workers o n the swing stage. The court's ruling dem- onstrates 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 crimi- nal negligence analysis can focus on a specifi c, narrow time period and examine it in isolation from one's broader conduct in the workplace. Kazenelson will be sentenced in the fall. 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. Jeremy Warning is a former OHS prosecutor who is now a partner at Mathews Dinsdale & Clark in Toronto. He can be reached at (416) 777-8284 or jwarning@mathewsdinsdale.com. PEOPLE&PLACES JEREMY WARNING LEGAL LANDSCAPE PEOPLE&PLACES JEREMY WARNING LEGAL PEOPLE&PLACES LEGAL PEOPLE&PLACES The classic OH&S resource in the format you prefer Now you can access the go- to OH&S resource for Ontario companies – the "Green Book" – as a smart eBook on your iPad, Android tablet or directly from your web browser. Powered by the Thomson Reuters ProView™ app, our eBook gives you the freedom and fl exibility to work wherever and whenever you want. You get fast, convenient access to the complete current Ontario Occupational Health & Safety Act and regulations, and a list of OH&S information resources. In addition to the updates to the Act and Regulations, the 2015 edition includes the following new feature: A new section has been added providing practical guidance on accident prevention, investigations, and reporting, including information on work refusals and a due diligence checklist. Pocket Ontario OH&S Act & Regulations – Consolidated Edition is also available in a larger tabbed version with larger font, the Ontario OH&S Act & Regulations 2015 – Consolidated Edition. Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Pocket Ontario OH&S Act & Regulations 2015 – Consolidated Edition Ontario OH&S Act & Regulations 2015 – Consolidated Edition Now available as an eBook on Thomson Reuters ProView™ Pocket Ontario OH&S Act & Regulations 2015 – Consolidated Edition Order # 986188-65201 $23.95 Softcover + ProView eBook approx. 1000 pages March 2015 978-0-7798-6188-0 Ontario OH&S Act & Regulations 2015 – Consolidated Edition Order # 986622-65201 $23.95 Softcover + ProView eBook approx. 750 pages March 2015 978-0-7798-6622-9 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00228AC-A48986

• Cover