Site supervisor in fatal Toronto scaffolding collapse sentenced to 3½ years

Construction site supervisor Vadim Kazenelson has been sentenced to 3½ years in prison for his role in a scaffolding collapse at a Toronto construction site on Christmas Eve 2009 that left four workers dead. 

The Ontario Superior Court found Kazenelson, now in his 40s, guilty in June 2015 of four counts of criminal negligence causing death and one count of criminal negligence.

During sentencing, Justice Ian MacDonnell said Kazenelson was aware that fall protections were not in place, but still allowed his workers to board a swing stage that collapsed, causing five workers to plummet to the ground.

The Crown was seeking a sentence of four or five years in prison; the defence was suggesting a one- or two-year prison sentence. Imprisonment on each count will be served concurrently.

Justice MacDonnell said Kazenelson "decided it was in the company's interest" to allow men to work in "manifestly dangerous conditions."

He said Kazenelson put that interest — in particular getting the work finished ahead of a Dec. 31 deadline — before the safety of workers when the decision was made to continue work without safety harnesses.

"A worker's acceptance of dangerous work is not always a voluntary choice," he said.

Four Metron Construction Inc. workers — Aleksey Blumberg, 32, Alexander Bondorev, 25, Fayzullo Fazilov, 31, and Vladimir Korostin, 40 — died after falling 13 storeys on Dec. 24, 2009, when the scaffolding beneath them collapsed.

Another man, Dilshod Marupov, was seriously injured, suffering a fractured spine and ribs, in the fall outside the highrise apartment building on Kipling Avenue, just south of Steeles Avenue West.

Kazenelson managed to hold onto a 13th-floor balcony when the swing stage split in two, the court was told at his trial in June. He had been handing tools to the men earlier that day, according to testimony.

It's the first time in Ontario that someone has been sentenced under a 2004 law that makes employers criminally liable for workplace safety lapses.

Ontario Federation of Labour president Chris Buckley praised the judge's ruling, which he said sends a strong message to any employer who tries to save money by skirting workplace safety rules. 

"Every employer should have shivers up their spines today," Buckley told reporters outside the courtroom. "Bosses cannot expect that it's all about money. Families have been destroyed here. This is not just about profits any longer. This is about health and safety of workers."

Kazenelson is appealing his conviction. He has been granted bail and his lawyer said he expects Kazenelson will be released later today. 

Sentencing

Only a handful of others across the country have been convicted of criminal negligence connected to the workplace since the law was changed, including:

  • A BC Ferries navigation officer was sentenced to four years in prison on June 24, 2013, after being convicted of criminal negligence causing death. Karl Lilgert got distracted and didn't notice that the Queen of the North ferry had gone off course. The vessel then ran aground and two passengers died as the ferry sank in March 2006.  Lilgert appealed his sentence, but the Supreme Court of Canada dismissed the case in May.
  • A Quebec landscape contractor was convicted of criminal negligence causing death in September 2010, after one of his employees was crushed to death by a backhoe the contractor had been driving. An investigation found that the 30-year-old backhoe had not received regular maintenance since the contractor bought it, nor had it undergone a formal inspection in five years, the Canadian Centre for Occupational Health and Safety reports. The Quebec man received a two-year conditional sentence.

Stiffer fines

The 2004 changes to the law also led to a harsher penalty for Metron Construction Inc., the firm who employed Kazenelson and the other workers.

A judge initially fined the company $200,000 in July 2012 after it pleaded guilty to criminal negligence causing death, as well as $142,500 in victim and other surcharges.

But the Ontario Appeal Court overturned that sentencing decision in September 2013, saying that the lower fine reflected guidelines from the Ontario Health and Safety Act — and not the new sentences outlined in the Criminal Code.

Ontario Federation of Labour president Chris Buckley said the sentence sends a message to employers that workplace safety rules can't be ignored. (Mike Crawley/CBC)

"Indeed, some might treat such a fine as simply a cost of doing business," the Appeal Court judges wrote, before raising the base fine to $750,000. "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."

Safety violations

Metrocon's president, Joel Schwartz, was also initially charged in the case, but the Crown dropped those charges in July 2012, saying it couldn't secure a conviction.

Numerous safety violations emerged as the case made its way through the courts. Only one man of the six on the scaffolding was wearing a harness secured to a lifeline — and he was the only one to survive.

Kazenelson allowed the six men to keep working on the platform at the time, although there were only lifelines available for two people.

Court documents also showed that three of the four men who died had marijuana in their systems before going up to repair the balconies. One of the three was also a supervisor.

Source: CBC.ca