Construction project manager convicted of criminal charges

An article by Ryan Conlin and Frank Portman of Stringer LLP, management lawyers, describes a recent decision by the Superior Court of Justice as “the most significant decision ever decided under the Criminal Code in the context of OH&S [occupation health and safety].

As described in the article (published on Mondaq, July 15), the case of R v Kazenelson is over a tragedy that occurred on a construction site in west Toronto on Christmas Eve in 2009. A swing stage at the 12th floor of a building under construction collapsed, killing four workers, and catastrophically injuring a fifth. Only one worker was using a safety lifeline. Another safety line was lowered but not used. The accused, the project manager, had also stepped onto the swing stage, but managed to haul himself onto a nearby balcony to safety.

Conlin and Portman point out that under the Criminal Code as clarified by Bill C-45 in 2003, “any person who can direct work has an obligation to take reasonable steps to prevent bodily harm to others.”

They explain that the accused project manager had pointed to the fact that the company was sent a defective swing stage and thus it was not foreseeable to him that it would collapse. Secondly, he argued that the workers who fell were trained in the proper use of fall protection and made their own to choice to get on the swing stage with only two lifelines.

The result: “The Court categorically rejected the arguments of the accused. It found that the duty of the accused given his position required him to take proactive measures once he identified the hazard, which the accused failed to do. He could not rely on the training of the workers to defend himself from failing to take what the Court found were the most basic steps to prevent the accident.”

The case is the first time in an Ontario court that someone has been found guilty under Bill C-45.

Of the ruling’s significance, Conlin and Portman point out: “The Court confirmed that a violation of the OHSA or regulations does not in and of itself mean that the accused is guilty of criminal negligence.
“However, it is clear from the case that the Crown will be able to establish criminal negligence where a worker is committing an obvious health and safety violation and the employer or supervisor takes no steps to prevent it.”
To read the article in Mondaq (the article was sourced from First Reference Talks, click here.