The three and a half year jail sentence handed down to Vadim Kazenelson, the project manager at the apartment renovation site where a swing stage collapsed Christmas Eve 2009 killing four men and injuring a fifth, was hailed as "an important message" by some workplace safety advocates.
Kazenelson said nothing as Justice Ian MacDonnell ordered him taken into custody on Jan. 11. His family and supporters were equally hushed. He was found guilty last year and MacDonnell noted at the sentencing hearing that jail time would follow. Kazenelson was released on bail later in the day pending an appeal.
Sylvia Boyce of the United Steelworkers said it’s the first case since the so-called Westray Bill (Bill C-45) came into effect in 2004, where someone will actually serve jail time.
"In the other cases they never actually went to jail," she said, noting the Steelworkers have been pressing safety with a national campaign, Stop the Killing and Enforce the Law. "It sends a message."
Metron owner Joel Swartz and his company were initially fined a total $342,000 in 2012 in connection to the swing stage tragedy. On appeal, those fines jumped to $750,000 a year later. 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.
During sentencing the justice noted there weren’t many similar cases to look at.
"The sentence had to reflect the terrible nature of what happened and the accused’s role in it," he said.
Despite a history of being vigilant when it came to safety (workers testified if caught working without a lifeline they risked being fired), Kazenelson was aware that fall protections were not in place, but still allowed the crew to board the swing stage. While he did not know the platform was unsafe, would collapse or that his employer stood to gain a $50,000 bonus if the Kipling Avenue highrise balcony repair job was completed by Dec. 31, he was aware of the deadline and deemed the risk acceptable because to install four more lifelines would have caused a delay.
"You put that company’s interest ahead of the health and safety of your co-workers," said MacDonnell. "A worker’s acceptance of dangerous work is not always a voluntary choice."
Outside the courthouse, Ontario Federation of Labour president Chris Buckley echoed Boyce’s views saying employers who cut safety rules do risk jail time.
"Every employer should have shivers up their spines today," Buckley said. "Bosses cannot expect it’s all about money. Families have been destroyed here."
Boyce says it’s been a long journey since 26 miners died at the Westray Mine in Nova Scotia in 1992 as a result of shoddy management acting with a total disregard for workers’ safety.
The 1992 accident led to a mistrial and none of the mine managers were ever called to account as the charges were dropped. However, it did spur the federal government to enact Bill C-45 which toughened up the Criminal Code in relation to workplace safety. The bill created a specific personal liability for owners and managers to ensure all safety programs and procedures are followed.
Now what is needed, said Boyce, is better communication between police and OHSA (Occupational Health and Safety Act) investigators.
"Every workplace fatality should be looked at through the lens of the Criminal Code to see if charges are warranted," she said, noting police and Ministry of Labour (MOL) investigators know what they have to do but need to work more closely now having seen jail terms can result.
The 2009 swing stage tragedy killed four workers:
- Aleksey Blumberg, 33, who had been in Canada only four years and was newly married;
- Alesandrs Bondarevs, 24, who had been here since 2002 and lived with his parents and was planning to go back to school;
- Vladamir Korostin, 40, who had been in Canada only two years and had two daughters, six- and 14-years-old at the time. He had planned to spend Christmas reconciling with his wife; and
- Site supervisor Fayzullo Fazilov, 31, who had also only been in Canada two years, while his wife, two- and seven-year-old children, elderly parents and four sisters, lived in Uzbekistan where he provided for them.
Shohruh Tojiddinov was wearing a secured harness and hung suspended. He testified Kazenelson didn’t insist on everyone wearing the gear and after the incident asked him to lie about it.
Dilshod Marupov, another Uzbekistanian, was injured when he hung on to the swing stage after the collapse. He had no work permit and was a friend and roommate of Fazilov who had invited him to work on the project. He had been on the job only two days. The sentencing marks the last stage in criminal prosecutions following the tragedy.
The MOL is reviewing the rules of the Construction Projects Regulation under the OHSA.
It plans to improve operational, design, technical and engineering requirements and introduce new training standards for equipment operators and workers.
Part of the changes also include strengthening inspection, testing and maintenance requirements and new references to national standards for design, installation, inspection and maintenance.
However, changes to the suspended access equipment regulations some six years later won’t be tabled at least some time in 2016.
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