photo cretit: Matthew Wiebe via UnsplashOn January 11, 2016, Vadim Kazenelson, a former project manager with Metron Construction, received a three and a half year prison sentence as a result of employee fatalities and injury that occurred under his watch. While Kazelnelson’s sentence is the first of its kind in Canada, it will likely be the first of many prison sentences for managers who do not take reasonable action to prevent injury to employees.

Kazenelson’s sentence stemmed from his failure as project manager to take any action that may have prevented the deaths of four employees and serious injury to another employee that resulted when a swing stage scaffold snapped in half on December 24, 2009. The employees had been standing on the swing stage thirteen stories above ground to repair balconies on a high rise apartment building in Toronto. Only two workers on the swing stage were actually were secured by lifelines, as required by law. While Kazelnelson had known about the lack of sufficient lifelines, he did nothing about it after being told not to worry by Fayzullo Fazilov, the site supervisor. Fasilov also died when the swing stage snapped.

Unfortunately, the facts of this case are not unique. Falls are the number one cause of critical injuries and deaths of workers at construction sites in Ontario. However, managers like Kazenelson who fail to take reasonable steps to prevent bodily harm to the employees that he or she supervises attract criminal liability under Section 217.1 of the Criminal Code. Section 217.1 states that everyone who directs how another person performs work has a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from the performance of that work.

Kazenelson’s sentence comes nearly seven months after his conviction on June 26, 2015 of four counts of criminal negligence causing death and one count of criminal negligence causing bodily injury. Kazenelson’s criminal liability arose from his awareness that fall-related safety protections were not in place, but still allowed his workers to board the swing stage – see R v Vadim Kazenelson, 2015 ONSC 3639, at paragraph 141. Justice MacDonnell, who wrote the decision, stated at paragraph 124 that Kazenelson’s question to Fasilov about the absence of lifelines and his acceptance of Fazilov’s admonition not to worry was not a step toward protecting the workers from harm within the meaning of Section 217.1 of the Criminal Code. Kazenelson was Fazilov’s boss and Fazilov took direction from Kazenelson – not the other way around.

The fact that Kazenelson received a prison sentence for his role as project manager means that employers should be more vigilant than ever in ensuring that its representatives take every step possible to prevent bodily harm to employees. A crucial takeaway from this case is the fact that Kazenelson’s jail sentence did not arise from his actions, but rather his lack of action in the face of dangerous working conditions.