Vadim Kazenelson, the project manager involved in the swing stage collapse on Christmas Eve 2009 that killed four men and injured a fifth, is slated to appear before the Ontario Court of Appeal today (Dec. 13) asking for his jail term of three-and-a-half years to be struck down.
The Ontario Superior Court found Kazenelson guilty in June 2015 of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.
He was sentenced 11 months ago to jail but was almost immediately released pending appeal. He has not served any of the sentence handed down by Justice Ian MacDonnell.
Sylvia Boyce of United Steelworkers Canada says the outcome of the appeal is important because it’s a pivotal case.
“We really do hope the sentence stands up,” she says. “In fact, we really hope the sentence is increased. There was no excuse for this. He ignored the safety procedures and the law and you can’t replace those lives which were lost.”
The Steelworkers have been campaigning for years under the banner Stop the Killing and Enforce the Law.
You put that company’s interest ahead of the health and safety of your co-workers
— Justice MacDonnell
Ontario Superior Court
“We need every workplace accident to be investigated through the lens of the criminal code,” Boyce says. “Until people start going to jail nothing will change. The attorney general of Ontario and all the justice ministers across Canada must get together and set the standards here and devote resources.”
Justice MacDonnell himself noted a paucity of case law to guide his decision.
“The sentence had to reflect the terrible nature of what happened and the accused’s role in it,” he said at the time of sentencing last January.
While Kazenelson was generally efficient in enforcing safety rules such as fall-arrest harnesses, on the day in question he knew the men weren’t hooked up and still allowed them all to board the swing stage, the court heard.
He was also unaware that the platform itself was faulty, nor did he know the company Metron and owner Joel Schwartz would get a $50,000 performance bonus if the Kipling Avenue project wrapped before year end. He was, however, aware of the deadline and shrugged off installing four more lifelines because it would have delayed progress.
“You put that company’s interest ahead of the health and safety of your co-workers,” MacDonnell said.
Schwartz and his company were initially fined a total $342,000 in 2012. On appeal those fines were 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.
The tragedy killed four workers: Aleksey Blumberg, 33, who had been in Canada only four years and was newly married; Alexander Bondorev, 24, who had been here since 2002 and lived with his parents and was planning to go back to school; Vladimir Korostin, 40, who had been in Canada only two years and had two daughters, six and 14 years old at the time; and site supervisor Fayzullo Fazilov, 31, who had been in Canada two years, while his wife, two 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, also from Uzbekistan, 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 marked the last stage in criminal prosecutions following the tragedy.
The Ministry of Labour has since overhauled the Construction Projects Regulation under the Occupational Health and Safety Act.
The building owners didn’t receive any penalty for their part in the series of events,not only by designing the initiative that created the urgency to complete for year end, it is also their responsibility to provide adequate roof safety anchors. The company opted to use 2 motors, rather than 4 or 2 swing stages. Harnesses have no value unless they are attached to an anchored lifeline system. As a result of this horrific event our W.S.I.B. rates have climbed to 19%,insurance has increased. In response the Ministry Of Labour has implemented a way to create revenue from this event, in the format of a mandatory Working at Heights training program. The audacity of the project manager/supervisor to appeal such a minimal sentence for his actions, considering 4 deaths of his subordinates occurred partially due to his inexperience and errors.