The project manager of the swing stage that collapsed Christmas Eve 2009 killing four men and injuring a fifth wasn’t responsible for day-to-day safety inspections and procedures, the Ontario Court of Appeal was told.
Lawyer Brian Greenspan, representing Vadim Kazenelson, who was sentenced to three-and-half-years in jail in January 2016, told the three-judge panel at Osgoode Hall in Toronto that role was delegated to the site supervisor, who was among the dead. Further, Greenspan said, the trial judge erred in placing Kazenelson on the swing stage in convicting him.
He was at the appeal court to strike down his jail term and conviction and ask for a new trial. The court has reserved judgement and Kazenelson’s bail was extended through Jan. 1, 2018.
“We say he was never on that swing stage because he would have to have been superhuman to save himself, with no lifeline, and to also save the other workers when it collapsed,” Greenspan argued in front of a packed courtroom. “He would also have to have been suicidal or have a flagrant disregard for his own life to get onto the swing stage with the other six people and know there were only two lifelines.”
In any event, he argued, it was a momentary lapse over 30 to 45 minutes that doesn’t deserve a “disproportionate” sentence and stain on his record.
“If there is to be a deterrent in the sentence and message to the construction industry, it should be two years, not a penitentiary term,” Greenspan said.
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.
The jail term was hailed at the time of sentencing in 2016 because it marked the first time someone was sent to prison under the criminal code for a workplace incident.
In arguing the appeal, Greenspan said the Crown failed to prove Kazenelson was the person in charge of day-to-day operations when in fact evidence showed it was Fazilov who was responsible for checking the lifeline anchors on the roof every morning and inspecting the swing stage.
“In fact, Kazenelson ordered the swing stage be reassembled after it was first delivered to the site because he wasn’t satisfied with the way it was initially put together,” Greenspan claimed.
However, Justice Janet Simmons noted the evidence shows Kazenelson knew the stage only generally carried two or three people and that there was no capacity sticker on it as required by law when it was carrying six people and equipment and the collapse occurred.
Crown prosecutor Deborah Krick rebutted Greenspan’s assertions, saying criminal negligence had been established beyond a reasonable doubt.
“He (Kazenelson) failed industry standards and his own standards,” she said, adding he knew there were more workers than lifelines. “They could just as easily taken the elevator down instead of getting into the swing stage.”
She said the trial judge found Kazenelson grabbed an available lifeline and pulled himself to safety.
Justice Peter Lauwers also challenged Kazenelson’s lack of awareness.
“How about telling them to get off the swing stage right now?” he challenged, further suggesting it was possible Kazenelson was climbing into the swing stage when it collapsed and that he could have scrambled back onto the balcony.
Greenspan said it was a matter of timing since everything happened so quickly and that wasn’t one of the factors in the reasons given for his initial conviction.
He said Kazenelson was unaware the platform itself was faulty, nor did he know the company Metron Construction and owner Joel Swartz would get a $50,000 performance bonus if the Kipling Avenue project wrapped before year-end.
“It wasn’t about pushing on, it was the end of the day, it was dark,” said Greenspan. “This was about going home for Christmas Eve and then Christmas Day.”
Swartz and his company were initially fined a total of $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.
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