The Court of Appeal affirmation of the conviction and sentence of Vadim Kazenelson, project manager during the time of the swing stage collapse that occurred Christmas Eve 2009 killing four men and injuring a fifth, is a “victory” for all workers, says the United Steel Workers (USW).
“We welcome the decision,” says Sylvia Boyce, District 6 co-ordinator of the USW which has been advocating for justice on behalf of dead and injured workers and their families for several years. “Kazenelson will serve his time and that is a victory for our campaign. But the guy who was ultimately responsible for that worksite in 2009 — the owner Joel Swartz — is a free man and that still seems wrong to us.”
However, while the sentence of three-and-a-half years for his role in four deaths is reasonable given the severity of the tragedy, says Norm Keith, a leading Occupational Health and Safety Act (OHSA) lawyer from law firm Fasken Martineau, there are still some questions of how the original judgment of criminal negligence applies to the section of the OHSA.
“I would suggest that at trial and on appeal, the parts of the OHSA which deal with internal responsibility — that safety is a shared responsibility between the workers and the supervisors — were misapplied,” he states. “However, given it could have been a 20-year sentence, which would have been too much given he has no prior record, then the three-and-half years are reasonable given four people died.”
The bottom line, however, says Boyce, is that the conviction and sentence were upheld and that sends a strong message to employers.
“I think they should be thinking long and hard about this,” she says, adding the conclusion is a case study that should be analyzed by all law enforcement and OHSA authorities.
“It is important to give a shout out to one law enforcement officer who did what all cops across this country should be directed to do by attorneys-general. Toronto Det. Kevin Sedore viewed this as a crime scene instead of turning it over to the Ministry of Labour.”
Ontario Federation of Labour (OFL) president Chris Buckley echoed her comments calling it “historic.”
“If you kill a worker, you will go to jail,” says Buckley. “No prison term or financial penalty can bring back the workers who died or undo the pain felt by their families, but this sentence has the power to prevent other workers from suffering a similar fate.”
Kazenelson was sentenced in January 2016 but was immediately out on bail pending the appeal which was heard in December. He has not served any of the sentence handed down by Superior Court Justice Ian MacDonnell thus far but now must report to begin his term.
In the 21-page appeal decision, Justice Peter Lauwers, writing for three-judge panel, notes: “The trial judge’s reasons for conviction and sentence are clear and the chain of reasoning is rooted firmly in his findings of fact. He made no legal or other errors. The appellant largely repeated arguments considered and dismissed by the trial judge.”
Further, Justice Lauwers ruled, the trial judge, with little in the way of written or case law to go on, “wrestled anxiously and carefully with the issue of the appellant’s moral blameworthiness and its effect on the sentence.
“It was not unreasonable for the trial judge to draw the inference, on the totality of the facts, that the desire to complete the work that day led the appellant to compromise his duties,” Justice Lauwers wrote. “The trial judge found that the appellant became aware, well in advance of the collapse of the stage, that there were only two lifelines available for the six workers who were working their way down from the top of the building. Moreover, I am not persuaded that the sentence would be unfit, even in the absence of this aggravating factor.”
Kazenelson’s lawyer Brian Greenspan argued the sentence should be reduced to two years less a day to avoid federal penitentiary time.
The tragedy killed four workers: Aleksey Blumberg, 33, Alexander Bondorev, 24, Vladimir Korostin, 40 and site supervisor Fayzullo Fazilov, 31.
Shohruh Tojiddinov was wearing a secured harness and hung suspended while Dilshod Marupov was seriously injured when he hung onto the broken swing stage and subsequently fell.
Swartz and his company Metron Construction were initially fined a total $342,000 in 2012, but a year later the fine jumped to $750,000.
The swing stage supplier, Swing N Scaff Inc. of Ottawa was also fined $350,000 for failing to ensure the platform was in good condition.
This incident and its final ruling demonstrates why, as I have argued and advocated for, workers in hazardous trades urgently need a robust and highly inclusive definition of ‘risk of harm’. One which fully recognizes the notion of risk of harm as also being when employers, owners, supervisors, and contractors knowingly place their employees and sub-contractors in harms way without proper risk mitigation strategies, and not just risk of harm to the public. The trial judge involved in the swing stage incident may not have had to ‘wrestle anxiously with the appellant’s moral blameworthiness’ had a robust, and highly inclusive definition of risk harm been in place as Senator Tony Dean (Dean Review, 2016) recommended to MOL and OCOT. As well, perhaps a more inclusive definition of risk of harm might have enabled the trial judge to cast a wider net to include others who may have been involved in this sad event?
Gavan Howe PhD (at dissertation)