Update: see previous post – January 11, 2016 Site supervisor in fatal Toronto scaffolding collapse to be sentenced today
Vadim Kezenelson was hired by Metron Construction Inc (“Metron”) as “project manager”. The president and sole shareholder of Metron was Joel Swartz. In the summer of 2009 he retained the defendant, Vadim Kazenelson, to be the ‘project manager’ for the Kipling restoration project. Mr. Kazenelson in turn hired Fayzullo Fazilov as the on-site supervisor or foreman.
The workers that fell 100 feet were all working on a motorized ‘swing stages’ suspended from the roofs of the buildings at apartment buildings at apartment buildings at 2737 and 2757 Kipling Avenue in Toronto. The work involved chipping away loose or deteriorated concrete, installing wooden forms, and pouring fresh concrete to restore the balconies to their original state.
Vadim Kezenelson was found guilty of four (4) counts of criminal negligence causing death and one count of criminal negligence on June 26, 2015 at the Ontario Superior Court in a decision handed down by Justice by Justice J. MacDonnell. His conviction related to the death of four (4) workers and the serious injury of a fifth worker, Mr. Dilshod Marupov, on December 24, 2009 when the “swing stages” they stood on collapsed.
Bill C-45 is federal legislation that amended the Canadian Criminal Code and became law on March 31, 2004. The Bill established new legal duties for workplace health and safety, and imposed serious penalties for violations that result in injuries or death. The Bill provided new rules for attributing criminal liability to organizations, including corporations, their representatives and those who direct the work of others.
Bill C-45 added Section 217.1 to the Criminal Code which reads:
“217.1 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.”
Bill C-45 also added Sections 22.1 and 22.2 to the Criminal Code imposing criminal liability on organizations and its representatives for negligence (22.1) and other offences (22.2).
Vadim Kazenelson is the first man in Ontario to be sentenced under a 2004 law introduced federally to make companies and employers criminally liable for workplace deaths, prompted by the 1992 Westray mine disaster in Nova Scotia that killed 26.
Justice MacDonnell sentenced him to 3.5 years today for his role in the death of four (4) workers and the serious injury of the fifth, Mr. Dilshod Marupov. 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.
As a matter of law (and of industry practice) every person working on a swing stage must be protected from the danger of a fall. To comply with that obligation at the Kipling site, Metron employed a ‘fall arrest system’. A fall arrest system is comprised of a full body harness with a lanyard that attaches to a vertical lifeline that is anchored to an independent fixed support on the roof of the building. Only one worker at a time may use a lifeline. Put another way, every person working on a swing stage must be attached to a separate lifeline.
During his trial, it came out that there were only two (2) lifelines, for six (workers) and that he did not take the appropriate steps to ensure that all six workers had lifelines. The one worker who did wear the lifeline, did not fall when the swing stage collapsed and as a result did not injure himself.
Immediately after the sentence of 3.5 years, Vadim Kazenelson’s defence counsel sought bail, pending the outcome of an appeal. Vadim Kazenelson is now out on a $40,000.00 bail, awaiting an appeal of the sentence, which could take up to a year to be heard.