Court Information

Ontario Court of Justice Old City Hall Toronto Region

Between: Her Majesty the Queen — and — Vadim Kazenelson

Before: Justice G. Sparrow

Reasons for Judgment on Committal Released on: February 1, 2013

Counsel:

• Rochelle Direnfeld and Elizabeth Moore for the Crown
• Lynda Morgan for Vadim Kazenelson

Reasons for Judgment

Sparrow J:

The Facts

[1] The accused is charged with criminal negligence causing death, and criminal negligence causing bodily harm in the collapse of a swing stage on a construction project at 2757 Kipling Avenue in Toronto on December 24, 2009. Five workers, including the foreman Fayzullo Fazilov fell 13 stories to the ground and died; one fell and suffered debilitating injuries to his legs and pelvis; and the other worker survived as he was attached to one of two life lines secured to anchors on the roof. The accused, the project supervisor, was working with the others but managed to remain on the balcony.

[2] All of the men worked on contracts for Metron Construction Corporation (Metron), the company hired to repair and restore concrete balconies on 18 story apartments at 2737 and 2757 Kipling Avenue. Work began in September 2009, and was expected to be completed by the end of November; delays occurred, however, because of cold weather, stops work orders and other factors.

[3] A notice of project was filed with the Ministry of Labour identifying Metron as "the constructor" and the accused as supervisor in charge. The accused hired foreman Fazilov; numerous Russian workers were hired over the course of the project, as well as a group of Filipinos. Their jobs included chipping away damaged concrete, cleaning reinforcing steel inside the concrete, building wooden moulds and pouring new concrete.

[4] Kamal Berrada, the consulting engineer supervising the project, explained that the workers used the swing stages, also called suspended access platforms, to move themselves and their materials and equipment from the ground to the balconies and between balconies. The workers stood on the balconies to do some of the work, and on the stages for other work. The work was executed in drops, or vertical columns of balconies – in other words, workers and their stages would drop vertically to repair balconies overhanging each other. Double stages of forty feet were used for apartments with double balconies, as was the case on drop 5/6 where the collapse occurred. Drop 5/6 had required extensive work.

[5] Joel Swartz, president of Metron testified that he hired the accused as manager of the project, upon the recommendation of a colleague Benny Saigh. Charges against Swartz and Metron have already been resolved.

[6] Swartz testified that the accused was tasked with hiring competent and qualified workers including an experienced foreman. He was expected to attend at the job site every day, although not for the entire day. Swartz told him that he would be paid 25 per cent of the profit made on the project.

[7] Swartz also testified that the accused was responsible for buying materials and equipment, including the swing stages. He was to ensure that they were properly assembled, installed and used and could delegate these tasks to a competent worker. Each stage was to have two lifelines for two workers.

[8] Swartz testified that the accused took out an advertisement in a Russian-language newspaper to find contract workers. He hired numerous Russians, and a group of Filipinos who were fired in early December. It was the accused's job to ensure that the foreman was properly trained and experienced. Daily inspections were to be performed by Fazilov and the other workers; the accused was responsible for managing and inspecting the job site.

[9] Swartz testified that the accused filled out weekly job inspection sheets, and a log book that included reference to workers safety and training. He updated Swartz regularly, although there were no records kept of daily inspections. Swartz attended the site weekly, and several times during the week of the incident.

[10] With regards to health and safety, it was the accused's responsibility to ensure that workers had the necessary training and qualifications, and were generally working in safe conditions.

[11] He agreed with the accused that if anyone required training in fall protection, which includes use of harnesses and lifelines, they would be sent to an outside training course. Some of the workers had already been trained; some, including Fazilov, were sent to an outside trainer. Some workers testified that they received training at the Kipling site.

[12] Swartz testified that the accused was sent to two courses given by the Construction Safety Association of Ontario (CSAO): one regarding the use of swing stages, and an instructor course so that he could teach the swing stage course himself. Several workers testified that they received some swing stage manuals on site.

[13] Andre Robichaud, the accused's instructor, explained that the CSAO is an agency funded through Workers Safety and Insurance Board premiums paid by construction industry employers. Its mandate is to promote health and safety in the industry. Participants in the course receive a workbook, the CSAO Construction Health and Safety Manual, and another guideline, all of which make it clear that all workers on stages must wear a harness and be tied to a lifeline at all times including when they get on and off. The Construction Project Regulation, passed pursuant to the Occupational Health and Safety Act, (hereinafter referred to as the OHSA and the Regulation) contains this requirement. In addition, the code of the Canadian Standards Association reflects this rule.

[14] Several workers testified they had received the CSAO manual at some point, and a few had cards certifying that they had received training while working for Metron on elsewhere. All workers who testified stated that they were aware that they had to be "tied off" to lifelines when on the stages.

[15] With respect to swing stages, Metron rented several from a Toronto supplier at the beginning of the project. When more were needed in October, Metron rented two forty foot stages, composed of four modules from an Ottawa company called Swing'n Scaff which was recommended by the Filipinos.

[16] Company president Patrick Deschamps testified that the stage, which had a load capacity of 1000 pounds, was a modified version of a stage designed by a company called Tractel. He designed it although he is not an engineer, as required by section 139 (2) of the Regulation. He testified that a Tractel manual and technical sheet was normally sent with the stage; only the technical sheet was located after the collapse however. Deschamps acknowledged that the manual may not have been sent.

[17] Investigation after the collapse also revealed that there were no stickers indicating load capacity, as required by the code of the Canadian Standards Association. The original motors had been replaced, and the load limits – the maximum limit at which the motor has been set to operate – had been tampered with to allow increased weight on the stage.

[18] Testimony regarding who installed and inspected the stage, both on the date of installation and thereafter, was somewhat vague and contradictory. The Filipino workers said that the accused was present for installation, and that he inspected it; worker Boris Kamilov testified otherwise. Kamilov also said the motors, which were later switched, looked old. Subsequent inspection revealed that the motor load limits had been tampered with. A few of the workers testified that they checked their own stages every day; however, daily inspection checklists, such as those provided by company and the CSAO, were not kept.

[19] Most of the evidence regarding what transpired on December 24 was provided by worker Shohruh Tojiddinov, the worker on the stage which collapsed who survived unharmed because he was tied to a lifeline.

[20] Tojiddinov testified that there were usually only two workers on the stage; however Fazilov told him that the drops had to be finished by December 29, and that the workers were promised a bonus if they did so. An additional bucket of concrete mix was elevated that day by a hoist. He said that the accused was at drop 5/6 the morning of the 24th, and met with Fazilov. He and the four who died ascended together, even though the stage only had 2 lifelines; they started pouring concrete on the 18th floor and moved down floor by floor on the stage, getting on and off to work on the balconies. At 10 am they picked up a sixth worker, Dilshod Marupov, who was injured in the fall. He testified that he had begun work the day before, and received about 45 minutes of training from the accused.

[21] Tojiddinov testified that the accused joined them after lunch, and worked with them on 2, 3 or 4 balconies. Only two workers could tie off as they descended.

[22] Tojiddinov testified that six workers boarded the stage at 4:30 pm, the end of the day; the accused passed tools from the balcony and hopped on, at which point, the stage collapsed. He – the only worker tied off – felt himself hanging; the accused had somehow made it back to the balcony and grabbed him. They descended via the elevator to find the bodies on the ground, each in a harness. The accused told him that he had managed to climb on the balcony by grabbing the lifeline.

[23] Tojiddinov also testified that at the police station the accused asked him to tell the police that the workers got instruction every Monday on fall arrest, and that he had not been on the stage when it collapsed. Tojiddinov said he complied, out of pity for the accused.

[24] One worker in the adjacent drop testified that he saw the accused on the balcony at 2 or 3 pm; Swartz said the accused told him he never got off the balcony.

[25] Two engineers, qualified as experts testified as to the cause of the collapse.

[26] Robert Molina, a structural engineer with the Ministry of Labour, testified that the evidence was based on a few other reports, including one, the "Trow report" addressing principle causes of the failure, another addressing metallurgical testing and materials failure and another addressing the weight of the stage and its components.

[27] Molina noted the following: 1) none of the modules had a load licence placard as required by the relevant code of the Canadian Standard Association; 2) modules two and three pulled away from each other at the time of the collapse, with the metal partly encircling a bolt, known as the ligament, being torn through and the end post of one module ripped away and 3) the force of the stage, manuals and workers was far in excess of the force that the torn piece of metals ligament area could withstand.

[28] Eugene Abramovici, an expert in materials failure and analysis, who examined the collapsed stage, also explained that the modules separated when a bolt pulled through the ligament. He explained that certain visible welds were cracked and had collected cement over time; they showed that damage increased gradually, and had started before use by Metron. He opined that two small welds, not visible through outside inspection, had been cracked since the stage was built. Certain welds were not long or thick enough. Ultimately, he concluded that the broken welds caused the end post to tear through the ligament, which was too small, thereby causing the collapse.

The Law

[29] Criminal negligence is defined in the Criminal Code as follows:

(1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

(2) "duty" – For the purposes of this section, "duty" means a duty imposed by law.

[30] Section 220 creates the offence of criminal negligence causing death:

(1) Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life

[31] Section 221 creates the offence of criminal negligence causing bodily harm:

Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

[32] Following the Westray mining disaster, Parliament added section 217.1 to the Code specifying the duty of a workplace supervision as follows:

Every one 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.

[33] The definition of the mens rea and actus reus of criminal negligence has been the subject of substantial jurisprudence over many decades. The characterization of the elements of the offence has evolved, largely through cases involving extremely negligent driving, and extreme negligence in the care of children.

[34] Ultimately, Crown and defence agree that the actus reus requires evidence of an act or omission which constitute a failure to perform a duty; if an omission is alleged, it must involve a duty imposed by law. The failure to perform must rise to the level of "wanton or reckless disregard".

[35] The meaning of "wanton or reckless" in jurisprudence was summarized recently by Hill, J. in R. v. Menezes [2002] O.J. No. 581 at para 72:

"The term wanton means "heedlessly" (Regina v. Waite (1996), 28 C.C.C. (3d) (Ont. C.A.)) "ungoverned" and "undisciplined" (as approved in Regina v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.) at 430, Morden J.A.) or an "unrestrained disregard for the consequences" (Regina v. Pinske (1988), 6 M.V.R. (2d) 19 (B.C.C.A.) at 33, Craig J.A. (affirmed on a different basis , [1989] 2 S.C.R. 979, Lamer J. The word "reckless" means "heedless of consequences, headlong, irresponsible." Sharp, Supra, at 30."

[36] The duty of a supervisor such as the accused is clearly established in law by s.217.1 – the duty to take reasonable steps to protect workers from bodily harm.

[37] With respect to mens rea, counsel again agree on the test – namely that the impugned act or omission must amount to a marked and substantial departure from the standard of a reasonable person in the accused's circumstances. The test is described as a "modified objective one" – requiring the Court to consider the accused's conduct, in view of the accused's perception of the facts. See:

• R. v. M.R., [2011] O.J. No. 1017 (C.A.) at para. 30
• R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215 at para. 9
• R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 at para. 43

[38] In R. v. Roy 2012 SCC 26 at para 27, the Supreme Court of Canada stated that two questions could be asked:

"It is helpful to approach to the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and steps to avoid it if possible. If so, the second question is whether accused's failure to foresee the risk and take reasonable steps to avoid it, if possible, was a marked and substantial departure from the standard of care expected of a reasonable person in the accused's circumstances."

[39] A highly significant duty of the accused is spelled out in s. 27 of the Occupational Health and Safety Act:

Section 27

27.-- (1) A supervisor shall ensure that a worker,

(a) works in the manner and with the protective devices, measures and procedures required by this Act and the regulations; and

(b) uses or wears the equipment, protective devices or clothing that the worker's employer requires to be used or worn.

[40] The protective device that the workers must wear is specified in section 141 of the Regulation:

Section 141

141. (1) A worker who is on or is getting on or off a suspended platform, suspended scaffold or boatswain's chair shall wear a full body harness connected to a fall arrest system.

(2) Every lifeline used with a suspended platform, suspended scaffold or boatswain's chair shall

(a) be suspended independently from the platform, scaffold or boatswain's chair; and

(b) be securely attached to a fixed support so that the failure of the platform, scaffold or boatswain's chair or its supporting system will not cause the lifeline to fail.

[41] The duties of a supervisor, working under the "constructor" are also established by section 14 of the Regulation:

Section 14

14. (1) A constructor shall appoint a supervisor for every project at which five or more workers will work at the same time.

(2) The supervisor shall supervise the work at all times either personally or by having an assistant, who is a competent person, do so personally.

(3) A supervisor or a competent person appointed by the supervisor shall inspect all machinery and equipment, including fire extinguishing equipment, magazines, electrical installation, communication systems, sanitation and medical facilities, buildings and other structures, temporary supports and means of access and egress at the project to ensure that they do not endanger any worker.

(4) An inspection shall be made at least once a week or more frequently as the supervisor determines is necessary in order to ensure that the machinery and equipment referred to in subsection (3) do not endanger any worker.

(5) A competent person shall perform tests and observations necessary for the detection of hazardous conditions on a project.

[42] The employer has a duty to ensure and record the proper training of workers in the fall arrest system:

Section 26.2

26.2 (1) an employer shall ensure that a worker who may use a fall protection system is adequately trained in its use and given adequate oral and written instructions by a competent person.

(2) The employer shall ensure that the person who provides the training and instruction referred to in subsection (1) prepares a written training and instruction record for each worker and signs the record.

[43] Suspended stages must be inspected by a competent worker before each day's use. See Section 137(11):

(11) A competent worker shall inspect a suspended platform, suspended scaffold or boatswain's chair before each day's use if it is operated by mechanical power.

[44] A competent worker is defined in section 1 as follows:

"competent worker", in relation to specific work, means a worker who,

(a) is qualified because of knowledge, training and experience to perform the work,

(b) is familiar with the Occupational health and Safety Act and with the provisions of the regulations that apply to the work, and

(c) has knowledge of all potential or actual danger to health or safety in the work;

[45] Section 25 of the OHSA contains a lengthy list of other duties of the employer regarding worker training and use and maintenance of equipment.

[46] In my view, it is clear that the accused, in law, had the duty to take reasonable steps for protection of his workers, under s.217.1 of the Code, and to ensure that they worked in compliance with the Regulation to the OHSA, as required by s.27(1) of the Act.

[47] The relevant regulations, listed above require a) that workers wear a fall arrest system at all times on swing stages, b) that swing stages be properly inspected and c) that workers be properly trained and records be kept of their training.

[48] In addition to proving acts, or a failure to perform duties arising to the level of material and substantial departure, the Crown must prove pursuant to s.220 and 221 of the Code that there was a significant causal connection between the conduct and the death and bodily harm; see R. v. Maybin 2012 SCC 24, at paragraph 15.

[49] In the case at bar, the Crown need only provide sufficient evidence of each of the above components of the offence such that a properly instructed jury could reasonably find guilt: See USA v Sheppard, 30 C.C.C. (2d) 424 (SCC).

Analysis

[50] To summarize, the Crown argues that the evidence of the following omissions by the accused constitute sufficient proof of the mens rea and actus reus of the offences to warrant committal:

1. Inadequate worker training, not complying with the standard training of the Construction Safety Association of Ontario;

2. Allowing the swing stages to be used despite inadequate documentation, including stickers indicating capacity and the proper manual;

3. Allowing the swing stages to be used despite obvious viewable problems such as broken welds;

4. Allowing the swing stages to be used without proper inspection by himself or a delegate;

5. Allowing the stage to be used without proper daily inspections, as required by section 137(11) of the Regulations and as outlined on the sheets provided by the CSAO and Swing 'n Scaff. Proper inspection would have revealed the deterioration of welds and ligaments;

6. Allowing the motors and their load limits to be changed;

7. Directing or permitting workers to board the stage on December 24 without being tied to a life line, although Section 141 of the Regulations and CSAO standards require "tying off";

8. Allowing seven workers on the stage, including himself, with only two lifelines, although Regulation 26.6(9) allows only one person per life line;

9. Allowing seven workers on the stage without knowing the load capacity, although Section 134 of the Regulations states that the load must not exceed that which it was designed to bear; and

10. Inadequately supervising Fazilov to ensure that his supervision was adequate.

[51] The Crown argues that the evidence of each of the above failure of duty is sufficient evidence of the mens rea and actus reus of the offences to meet the test in R. v. Sheppard, supra. In addition, the evidence of the failures, when combined or seen as a series of breaches, is sufficient to meet the test for committal.

[52] Defence counsel argues that in order to establish the norms of a reasonably prudent supervisor, from which the accused allegedly departed markedly and substantially, the Crown had to call expert evidence about standards applied regularly in the industry. Mr. Robichaud, referred to above, did not qualify as an expert. She submits that the Crown cannot simply rely on the provisions of the Occupational Health and Safety Act and the Regulation, because to do so would constitute "criminalizing" regulatory legislation. The standard of proof of criminal behaviour is much higher, and requires evidence of greater moral blameworthiness than is required to prove breaches of regulatory legislation. Such legislation, and guidelines of bodies such as the CSAO can only "inform" the criminal standard; they cannot set it.

[53] With respect to standards for supervision and training referred to in publications of the CSAO and the CSA, she argues that that they as well cannot be used to establish criminal behaviour; furthermore, there was no expert evidence to prove if or how they are generally applied in the construction industry, which would be necessary to make them relevant.

[54] With respect to specific duties which the Crown submits the accused failed to perform, she argues that the provision and inspection of swing stages, the training of workers and maintenance of training records are the responsibilities of the employer Metron, not the accused: see section 25 of the OHSA and Regulation section 26.2, referred to above. Furthermore, she argues that the Crown has not offered sufficient evidence that the duties were not performed, either by 1) the accused or Fazilov as supervisors; 2) a competent assistant, as is permitted for various inspection duties by section 14 of the Regulations, or 3) a competent worker for daily inspections of the swing stage, as is permitted by Section 138(ii) of the Regulations. She submits that no provision required the supervisor to warn workers to wear their lifelines every day.

[55] Furthermore, she argues that the Crown has not provided sufficient proof of causation – in other words, that there is no proof that any training related deficiencies, any failure to limit the number of workers on the stage, or a failure to properly install and inspect it was a significant cause of the collapse.

[56] Finally, she argues that while the accused's failure to remind workers to attach to a life line may have amounted to a "lapse", it does not rise to the level of wanton or reckless disregard.

Findings

[57] Defence counsel's argument about a lack of evidence of good industry practice regarding worker training, and installation and inspection of stages is not without merit. While the relevant provisions of the OHSA, the Regulation and the CSAO and CSA materials appear to be clear, it is difficult for the lay person to know how they are, or should be applied daily on a particular type of construction site. In addition, I agree that regulations do not establish criminal standards. As stated in R. v. Beatty, supra:

"[i]f every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminal persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty."

[58] I also agree with defence counsel that, in a nutshell, the evidence regarding who performed what duties regarding installation and inspection of the stage that collapsed is far from clear. I also agree that there is substantial evidence that all workers were trained to tie off to life lines, and understood that it was important.

[59] In my view, however, it is ultimately not necessary for the purposes of the preliminary inquiry to address the complex issues related to the accused's alleged failure to take reasonable steps to ensure proper training of the workers and proper installation and inspection of the stage. The questions of what is required of a reasonably prudent supervisor in these areas, and whether the accused exhibited a marked and substantial departure from the norm and wanton or reckless disregard are complex; they are better reserved for trial. So is the question of whether these alleged omissions contributed significantly to the collapse.

[60] However, in my view, evidence of his failure to ensure that all workers were tied to lifelines on the afternoon of December 24 is sufficient proof of criminal negligence causing death and injury to warrant committal for trial on all charges.

[61] At the very least, the evidence shows that the accused was on and off the stage with the six workers between 3 and 4:30 pm, with at most two of them tied to the only two lifelines available. Only one was tied off at the time of the collapse. They were working at high levels, at least the 14th and 13th floors; furthermore they were proceeding to descend 13 stories to the ground. Although it is not clear what the accused knew or should have known about the weight limits of the stage, it was clearly much more heavily loaded than usual, with seven workers and their equipment rather than the usual two.

[62] Evidence of causation is substantial – the one worker who was tied off survived without injury, the others fell and died or suffered debilitating injury. In addition, although the Crown need not demonstrate motive, evidence that a bonus was to be paid if a deadline of December 29 was met provides context, showing arguably why so many men were being permitted to work without standard lifeline protection.

[63] The accused's duty to ensure that his workers were attached to lifelines is spelled out specifically in the OHSA, and the rules of the CSAO; it was also referred to by Swartz. Furthermore, standard worker training, as described by the workers, common sense, and the obviously possible tragic results are clear evidence of the importance of this rule to worker protection. Expert evidence is not needed to understand it. In my view, a properly instructed jury could reasonably find that the accused's consent, tacit or otherwise, to at least five men using a swing stage with their equipment to ascend and descend 14 or more stories over an extended period without the protection of life lines was a marked and substantial departure from reasonable prudence, evidence of wanton disregard and a failure to take reasonable steps as required by Section 217.1 of the Code. As stated above, jurors could also find causation. After weighing the evidence they may find otherwise, but a finding of guilt based on the above outlined failure of duty would not amount to improper criminalization of a regulation.

[64] The accused will therefore be committed for trial on all counts.

Released: February 1, 2013

Signed: Justice Geraldine N. Sparrow