Journal of Commerce by RUSSELL HIXSON ~ Jan 14, 2016
In a rare use of legislation designed to hold employers accountable for harm to employees, a Toronto project manager has been sentenced to more than three years in prison for the death of four workers. The conviction was made possible by the seldon-used Westray Bill.
“We were pleased to see that conviction,” said Irene Lanzinger, president of the B.C. Federation of Labour. “It’s really the first time we have seen jail time handed out under that legislation and we have been calling for that for some time.”
The law was envisioned after 26 miners died at Westray Mine in Nova Scotia in 1992 as a result of widespread disregard of health and safety by management. None of the mine managers were ever called to account after dozens of charges were dropped.
However, it did spur the federal government to enact Bill C-45 in 2004 which toughened up the Criminal Code in relation to workplace safety and created a specific personal liability for owners and managers to ensure all safety programs and procedures are followed.
Lanzinger said she is slowly seeing more charges under the law, but they are still extremely rare as are successful convictions and sentences.
Lanzinger knows of only one Westray case in B.C. that is still working its way through the courts.
“We have long said if we hold people accountable, who kill others while driving a car, then employers should be held accountable for deaths too,” she said. “It is the employer or management’s responsibility to have a healthy and safe workplace.”
One reason this has been difficult in B.C. was recently addressed by Bill 9, after botched evidence and interview gathering during an investigation into a deadly mill explosion left prosecutors unable to file criminal charges. The result was an overhaul of how WorkSafeBC handles cases. The Toronto conviction is now one of the few successful Westray cases and the first time it has been used to sentence someone to prison time in Ontario.
This month, Vadim Kazenelson, a project manager, was sentenced to three and a half years in prison for the death of four workers at a Toronto apartment renovation project. The workers died after a swing stage collapsed.
Last June, Kazenelson was found guilty of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm in relation to the incident. Kazenelson was on the 40-foot long swing stage, 13-storeys up, when it split in two, sending the four victims to their deaths. A fifth man fell and was seriously injured.
Kazenelson managed to hang on as a seventh worker was wearing fall arrest gear and hung suspended until help came. None of the five men who fell were wearing fall arrest equipment.
In his sentencing decision, Justice Ian MacDonnell wrestled with the fact that the main contributing factor to the fall was faulty equipment and Kazenelson played no role in the sequence of events that led the victims to board the stage at the beginning of the day without fall protection. However, when faced with the dangerous situation, Kazenelson failed to deal with it and allowed work to continue.
“A consideration of all of the circumstances can lead only to the conclusion that a significant term of imprisonment is necessary to reflect the terrible consequences of the offences and to make it unequivocally clear that persons in positions of authority in potentially dangerous workplaces have a serious obligation to take all reasonable steps to ensure that those who arrive for work in the morning will make it safely back to their homes and families at the end of the day,” concluded Justice MacDonnell.
Lanzinger said the BC Federation of Labour is asking government to install a dedicated crown prosecutor to handle workplace injury cases. Her Ontario counterpart hopes the sentence delivers a message.
“I hope this verdict sends shivers down the spine of employers across Ontario. The message from this Ontario court echoes the campaign of the Ontario Federation of Labour: if you kill a worker, you will go to jail,” said Ontario Federation of Labour president Chris Buckley in a statement.
“No prison term or financial penalty can bring back the workers who died or undo the pain felt by their families, but this sentence has the power to prevent other workers from suffering a similar fate.”
Jan 14, 2016