Swing stage sentence sends ‘smarten up’ message

Ontario’s building trades council doesn’t want to see supervisors, owners, or contractors go to jail. It’s not an ideal outcome. "We want the carnage stopped in the workplace," says business manager Patrick Dillon.

It’s a message echoed by several leading construction industry stakeholders in reaction to the case of Vadim Kazenelson, who was sentenced Jan. 11 to three and a half years in jail for his role in the 2009 Christmas Eve swing stage tragedy.

"People have to pay attention and when they don’t they should have to pay the penalty," explains Clive Thurston, president of the Ontario General Contractors Association. "This sends a good, clear message to stop screwing around and taking chances."

Ian Cunningham, president of the Council of Ontario Construction Associations, states bluntly: "We’ve got to smarten up. Legitimate accidents can occur, unfortunate accidents can occur even on the safest workplace, but dumb, stupid, avoidable accidents like this one should never take place."

Dillon’s opinion in Kazenelson’s sentence is slightly different. He says it only sends a partial message and believes an entirely different scenario should have played out.

"The fact that somebody is going to jail in some ways is a step in the right direction. The fact of the matter is it’s the wrong person going to jail," he states, adding Kazenelson’s sentence is "only one part of an overall approach to worker safety. I think that the legislation needs to be clearer so that the buck stops with the owner who is the ultimate decision-maker and sets the policies and practices for everybody under him or her within the company."

Kazenelson was the project manager overseeing a crew working at a highrise renovation project on Kipling Avenue in Toronto. He was also on the swing stage, 13-storeys up, when it split in two, sending four victims to their deaths. A fifth man fell and was seriously injured. Kazenelson managed to hang on, while a seventh man was wearing fall arrest gear and hung suspended until help came.

Following the tragedy, it was determined the design and assembly of the swing stage was faulty and the manufacturer had not tested it properly or obtained the proper approval of an engineer in relation to its design.

The company involved in the case, Metron Construction, was found guilty of criminal negligence causing death and was eventually fined $750,000. The company that supplied the swing stage, Ottawa-based Swing N Scaff Inc., was fined $350,000 for failing to ensure the platform was in good condition.

Kazenelson was found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm, which resulted in his jail sentence. It’s the first case since the so-called Westray Bill, also known as Bill C-45, came into effect in 2004, where someone could actually serve jail time. Kazenelson is appealing his conviction and was released on bail.

"While it was the construction supervisor’s responsibility to ensure the workers had proper safety training and equipment, no one from the company was held criminally liable for these deaths. Not the owner, not the directors and not any executives," Dillon points out, adding, "To the owner of the company, it’s still just a cost of doing business."

Thurston says all parties involved on a project need to put safety first and this ruling helps reinforce that.

"It’s everybody from the CEO down that has to be involved in health and safety," he says.

"I was pleased to see that the courts are finally taking the issue of health and safety seriously. I believe the courts rendered the right decision. The penalty is there for everybody to see. The other related penalties to others involved in this horrific incident, that should not have occurred, is the right message."

Cunningham adds it hits home the point that "we’ve got to inject a high value for health and safety for construction work sites across the province," he says. "The cost of a mistake is enormous."

Dillon says this sentencing will likely impact supervisors on job sites who will now potentially think carefully before acting on every owner request. Justice Ian MacDonnell said that the supervisor’s decision to have the men work in dangerous conditions was motivated in part because of a promised $50,000 bonus to Metron if the work was done before Dec. 31.

"Our supervisors, particularly on construction work sites, are going to understand now that no matter what the owner tells them…if you’re the person that’s going to be going off to jail, you’re not going to be taking the owner’s ‘I got your back’ commitment," he says. "You’re going to be pushed to try and ensure that nothing of an unsafe nature takes place on your job site."

Cunningham adds that as a result of this incident an expert panel led by Tony Dean was created. The 46 recommendations stemming from the panel ultimately led to Bill 160, the Occupational Health and Safety Statute Law Amendment Act, 2011. Among the recommendations was the creation of Ontario’s chief prevention officer, who has implemented several safety initiatives and programs.

While these are important to the industry, Cunningham states it may not be targeting the right people all the time.

"The best we seem to be able to do to with any health and safety problem, is more training, more training, more training," he explains. "We’re burdening all the good performers with all of these new training regimes, when they’re already performing in a safe manner and the uncommitted are still uncommitted. Somehow we have to reach out to the non-compliers and those that are yet to be converted and convert them."