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Legal Notes: Risk of jail time for contractors is remote but real

John Bleasby
Legal Notes: Risk of jail time for contractors is remote but real

Providing safe working conditions on jobsites falls under the responsibility of the supervising contractor. When incidents occur, investigations follow. In circumstances when the result is an injury, fines are often imposed on those found to have failed to provide and enforce required safety measures.

However, there have been instances across Canada when authorities have gone beyond assessing financial penalties, particularly when a death has occurred.

As reported by CBC news a few years ago,  job supervisor Sukhwinder Nagra was sentenced to four months in jail and the contracting firm employing him fined $425,000 following a trench collapse that killed a worker in 2015. Alberta judge Michelle Doyle determined company actions “exploited the vulnerability of a vulnerable worker at their own profit. They put their own interests ahead of any regulations.”

In Quebec, another trench collapse caused the death of Gilles Lévesque from a traumatic brain injury. The president of the excavation company, Sylvain Fournier, was found guilty of criminal negligence causing death by failing to take the necessary measures to prevent injuries to others while directing the performance or execution of work or a task, and having caused Lévesque’s death by committing manslaughter. Fournier was sentenced to 18 months in jail.

“Jail time is a real but rare possibility for contractors due to the required high burden of proof beyond reasonable doubt,” Gowling WLG partner Sahil Shoor told the Daily Commercial News.

Nevertheless, jail sentences can and do happen, he says.

Shoor references the 2009 incident where four workers died and one was critically injured as the result of a Christmas Eve scaffolding collapse at a Toronto apartment building site. Project manager for Metron Construction Inc. Vadim Kazenelson was sentenced to three-and-a-half years in prison after being found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.

As Shoor explains, “The Crown had to prove Mr. Kazenelson had the authority to direct how the workers employed by Metron did work or performed a task, that he failed to take reasonable steps to prevent bodily harm to those workers and, in failing to do so, showed wanton or reckless disregard for their lives or safety.”

Judge Ian MacDonnell determined Kazenelson was aware that five employees on the scaffold were not wearing safety harnesses but that he allowed them to continue work on a swing stage located 13 storeys above the ground. The sole uninjured worker was wearing one of the only two harnesses provided. Three of the four who died also had marijuana in their systems.

Why would a site supervisor or contractor permit this to happen in the first place? Often the answer lies in time and profit pressures.

In the case of the collapsed scaffold, the court heard repair work on the apartment balconies was behind schedule and that bonuses would be provided to Kazenelson’s company if the project was completed by Dec. 31. MacDonnell concluded company interests clearly outweighed work safety and that, “a worker’s acceptance of dangerous work is not always a voluntary choice.”

Charges of this sort are now possible due to the so-called Westray Law, federal legislation that amended the Canadian Criminal Code and became law on March 31, 2004. This has established new legal duties for workplace health and safety including criminal responsibility and allows for serious penalties for violations that result in injuries or death.

Even older cases are being brought forward.

In British Columbia, 24-year-old Sam Fitzpatrick was killed in 2009 by a falling boulder on a hydroelectric worksite, the result of what WorkSafeBC called “reckless disregard” for safety on the site. One of the two men charged for criminal negligence causing death, engineer Timothy Rule, was arrested in Montana and is now facing extradition.

There could be more charges and jail sentences over time as a result of court decisions that view construction incidents resulting in death through a criminal lens. 

John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.

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