Employer Alert: Inquest into the 2009 Metron Scaffolding Tragedy Begins

By Daniel Wong, Megan Mah and Alfred Pepushaj, Student-at-Law

An inquest into a scaffolding collapse that resulted in the death of four construction workers is underway. The inquest into the tragedy is aimed at improving worker health and safety and preventing other tragedies from happening again.

Background

On Christmas Eve, 2009, seven workers boarded a swing stage to conduct balcony repairs on a high-rise apartment in Toronto. A swing stage, which is used to gain access to exterior balconies, is a motorized platform that is suspended from the roof of a building. The employer, Metron Construction Corporation (“Metron“), employed a ‘fall arrest system’ to protect workers from the danger of a fall. The system requires every worker on a swing stage to be attached to a lifeline in case of a fall. On that day, there were only two lifelines in place for the seven workers.

After completing their work, the workers, including Vadim Kazenelson, the project manager, boarded the swing stage to reach the ground level. Only one of the workers attached himself to one of the two lifelines. When the stage began to descend, the stage collapsed, and five of the workers plunged 100 feet to the ground. One of the workers survived the fall, although he suffered severe injuries. The worker who was tied off to a lifeline also survived. Mr. Kazenelson held on to a balcony when the collapse occurred.

Charges under the Criminal Code and the Occupational Health and Safety Act

On January 11, 2016, following a criminal trial, Mr. Kazenelson was convicted of four counts of criminal negligence causing death and one count of causing bodily harm. He was sentenced to three and a half years in prison.  The Superior Court of Justice held that Mr. Kazenelson was in breach of sections 217.1 and 219 of the Criminal Code (the “Code“).[i]

Section 217.1 of the Code governs the duty of persons directing work, and provides that every person “who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.” The Court held that Mr. Kazenelson’s failure to take any steps to prevent the workers from using the swing stage constituted a clear breach of his duty under section 217.1 of the Code.

The Court also held that Mr. Kazenelson had violated section 219 of the Code by showing a wanton and reckless disregard for the lives or safety of others. The Court considered the following factors:

  • the provisions of the Occupational Health and Safety Act (“OHSA“) and its regulations contained clear requirements that anyone working on a swing stage must be protected by a fall arrest system;
  • Kazenelson had been trained on fall arrest procedures;
  • Kazenelson was aware of the dangers of working on a swing stage without fall arrest protection; and
  • Kazenelson knew there were only two lifelines.

This conduct amounted to a marked and substantial departure from what a reasonable supervisor would have done. In his sentencing reasons, Justice MacDonnell stated:[ii]

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.

Mr. Kazenelson’s conviction and sentence were upheld by the Ontario Court of Appeal on January 30, 2018.[iii]

Metron also pled guilty to one count of criminal negligence under the Code. The Court imposed a $200,000 fine on the company.[iv] However, the Court of Appeal increased the fine to $750,000 on appeal, stating the following:[v]

A sentence consisting of a fine of $200,000 fails to convey the need to deliver a message on the importance of worker safety. Indeed, some might treat such a fine as simply a cost of doing business. Workers employed by a corporation are entitled to expect higher standards of conduct than that exhibited by the respondent.  Denunciation and deterrence should have received greater emphasis.  They did not. The sentence was demonstrably unfit.

Joel Swartz, Metron’s President and Director, was also charged under the Code. The charges were withdrawn. However, he pled guilty to four charges under the OHSA. He was fined $90,000 for failing to ensure, among other things, that Metron’s non-English speaking workers received written material in their native languages and for failing to ensure that the swing stage was not overloaded.[vi]

Workplace Safety Since the Metron Tragedy

In 2010, following the tragedy, an Expert Panel on Occupational Health and Safety released a report after its review of Ontario’s workplace health and safety system. In 2011, Ontario passed the Occupational Health and Safety Statute Law Amendment Act, 2011,[vii] establishing the legislative basis to enable the Ministry of Labour to implement various recommendations from the report. The changes included:

  • Appointing a new Chief Prevention Officer who is responsible for establishing a provincial occupational health and safety strategy;
  • Enhanced access to health and safety resources and support; and
  • Improved protections for employees against employer reprisals.

Workplace safety should be at the forefront for every employer in order to avoid tragedies like the one described above and the potential liability that could follow. As this case illustrates, companies, their directors, and individuals in charge of directing the work of others may be exposed to significant liability, including imprisonment, under the Code and OHSA.

The inquest, which was originally scheduled for May 2020, began on January 31, 2022, and is expected to last one week. Employers should stay tuned for the outcome of the inquest as there may be further amendments to the OHSA as a result of the recommendations from the inquest.

WeirFoulds has developed a flexible and targeted Employer Compliance Audit Program to assist employers with their efforts to achieve and maintain compliance with their obligations under the applicable employment laws and regulations including obligations under occupational health and safety legislation. For more information about the Employer Compliance Audit Program, please contact Daniel Wong, Partner and Chair of WeirFoulds’ Employment Law Group.

The information and comments herein are for the general information of the reader and are not intended as advice or opinion to be relied upon in relation to any particular circumstances. For particular application of the law to specific situations, the reader should seek professional advice.

[i] RSC, 1985, c. C-46.

[ii] R v Kazenelson, 2016 ONSC 25 at para 45.

[iii] R v Kazenelson, 2018 ONCA 77.

[iv] R v Metron Construction Corporation, 2012 ONCJ 506.

[v] R v Metron Construction Corporation, 2013 ONCA 541 at para 115.

[vi] R v Swartz, 2012 ONCJ 50.

[vii] 2011, SO 2011, c. 11 – Bill 160.