Workplace Wire

The City of Guelph was recently found not guilty of a health and safety charge resulting from an accident at a workplace that led to the death of a 14-year old student.

On June 16, 2009, the young student was in a public washroom while visiting a City park.  While in the washroom, she tried to boost herself up onto a change table that was affixed to a concrete privacy wall.  Unfortunately, the wall gave way and collapsed on her, causing injuries that led to her death.  Investigation by the Ministry of Labour following the accident confirmed that the privacy wall had been improperly constructed.  Specifically, the wall had not been anchored or tied into the exterior wall, nor had it been anchored or tied to the floor of the washroom.   While there was conflicting evidence as to whether the drawings and plans for the project had been prepared properly, there was no dispute that both the architect and the professional engineer assigned to the project had signed off on the drawings, which the City of Guelph had then relied upon in issuing the necessary building permits.

In the aftermath of the accident, the City of Guelph was charged under section 25(1)(e) of theOccupational Health and Safety Act with failing to ensure that a wall or other part of a workplace was capable of supporting all loads to which it may be subjected, without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act.In Ontario, OHS charges relating to accidents involving members of the public, clients and students have become more commonplace in recent years.

An OHS Violation Was Not Established
One issue at trial related to the specific charge that had been laid against the City.  While the charge referenced the “allowable unit stresses established under the Building Code Act”, theBuilding Code Act and the Building Code had abandoned the term “allowable stress units” in 1997 in the wake of a change in engineering philosophy and the introduction of a standard for masonry design by the Canadian Standards Association.  Despite the 1997 change to the Building Code Actand the Building Code, the Occupational Health and Safety Act continued to refer to the concept of “allowable unit stresses” until 2011, when the legislation was finally amended. As a result of all this, the City of Guelph found itself – in 2009 – charged with an offence under health and safety legislation which incorporated a concept – “allowable stress units” – that no longer had any meaning under the Building Code Act or the Building Code.

The City took the position that the Crown could not prove all of the elements of the offence beyond a reasonable doubt.  For its part, the Crown argued that as a public welfare statute, theOccupational Health and Safety Act  should be interpreted generously and that the purpose of section 25(1)(e) was, at its core, to ensure that workers are provided with a safe workplace.  The Crown alleged that the City of Guelph had failed in its duty when it approved the building permit for the project.

After considering the arguments, the trial judge found that the wording in section 25 (1)(e) of theOccupational Health and Safety Act had no applicability to the circumstances of the case in that the section – as it read in 2009 – incorporated by reference a standard that did not exist at the time of the design and construction of the public washroom.  The trial judge stated, “[i]t is an inappropriate exercise, in my view, to disregard the technical wording of the section and to draw the conclusion that it is meant to simply suggest that walls in a workplace must be maintained in a safe condition by an employer”.  As a result, the trial judge found that the Crown had not proven the elements of the offence beyond  a reasonable doubt and dismissed the charge. In addition to accepting this argument, the court found that the City had exercised due diligence as it had reasonably relied upon the drawings.

Changing Tide in the Broad Interpretation of OHS Legislation?
This case continues a welcome trend in recent cases in Ontario, providing some relief to employers who seek to lead defences to OHS charges based on the specific or technical wording contained in various provisions of the Occupational Health and Safety Act and its regulations.    It is true that the legislation is a public welfare statute and is generally to be interpreted in a manner that promotes public health and safety consistent with the purpose of the legislation. However, this guiding principle is not without its limits where adhering to the principle would, in effect, ignore specific wording contained in the legislation or lead to an absurd result. Other recent helpful cases include the Ontario Court of Appeal’s decisions in Ontario (Ministry of Labour) v. Sheehan’s Truck Centre Inc. and Blue Mountain Resorts Limited v. Ontario (Labour).

The City of Guelph case is not yet available electronically. Please contact the writer at chall@heenan.ca should you wish to obtain an unreported copy.