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Management has clear obligations to its employees to ensure their safety at work, especially in potentially dangerous workplaces. No worker should have to fear for their safety when they arrive at work, or be concerned that they will not return home at the end of their shift. According to the Canadian Centre for Occupational Health and Safety, however, 919 workplace deaths were reported in 2014 (an average of 2.5 deaths each day). Despite clear occupational health and safety regulations across Canada, there are still occasions in which management falls short of its obligations to protect its workers. In such cases, there may be criminal sanctions.

On January 11, 2016, the Ontario Superior Court in R. v Vadim Kazenelson sentenced a Project Manager to 3.5 years in prison for criminal negligence causing death and criminal negligence causing bodily harm as a result of a workplace accident in Toronto. During 2009, the employer, Metron, was contracted to repair concrete balconies in two eighteen-story apartment buildings. Metron’s workers had access to the balconies by using motorized “swing stages” that were suspended from the roofs of the buildings. It is a legal requirement, and industry practice, that every worker on a swing stage must have their own “lifeline” to protect them from a fall. The lifeline is anchored independently to a fixed support on the roof of the building. The requirement that every worker who steps onto a swing stage be protected at all times by such a fall arrest system is “the fundamental rule” for the protection of worker safety. The Project Manager was aware of this requirement.

On December 24, Metron was running up against a year-end deadline for the project. The pace of work was increased, and additional workers were deployed on the swing stage. When the Project Manager attended the site, it was apparent that only two lifelines were attached. By the end of that day, there were seven (7) workers on the swing stage, include the Project Manager, and only two lifelines. The Project Manager did nothing to rectify the situation. At the end of the day, all workers climbed onto the swing stage to return to ground level. One worker attached his lanyard to a lifeline. The other workers did not. Within seconds, the stage collapsed. Five of the workers fell 100 feet to the ground. Four died, one sustained serious injuries.

Section 217.1 of the Criminal Code imposes a legal duty on anyone who has authority to direct how a person does work or performs a task “to take reasonable steps to prevent bodily harm to that person or any other person arising from that work or task”.

The Court accepted that a term of imprisonment was required to adequately denounce the Project Manager’s failure to fix the safety problem, and to deter others with authority over workers in potentially dangerous work sites from breaching their legal duty under section 217.1. Although the workers themselves were aware of the safety deficiency (that there were not enough lifelines), this did not reduce management’s obligations. The reality is that “a worker’s acceptance of dangerous working conditions is not always a truly voluntary choice”. The legal obligation for workplace safety rests instead with management. In this case, management was aware of the risk, but decided that it was in Metron’s interest to “take a chance”. It put the company’s interest (to finish the project by year-end) ahead of its duty to protect its workers.

The Court’s message is clear: those with 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”.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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