Passage of time trumps health and safety charges

Wall collapse that killed Ontario student happened years after architect and engineer gave their approval of park building
|employmentlawtoday.com|Last Updated: 07/31/2012

An Ontario architect and engineer have been cleared of occupational health and safety charges by the Ontario Court of Justice after a wall they built collapsed and killed a student — years after the construction was complete.

In 2003, the City of Guelph, Ont., constructed buildings in a public park that included washrooms, utility rooms, shower and change rooms. L. Alan Grinham was the architect who designed the buildings and Larry Argue was the engineer on the project.

Construction on the buildings was completed in June 2004 and on Nov. 11, 2005, Argue sent a letter to Grinham stating Argue’s firm had reviewed the project several times and the structural work was complete and “satisfactory.” On Oct. 5, 2007, Grinham informed the city that the construction work met the requirements of the plans and the buildings were “suitable for the intended use and occupancy.”

The washrooms, which were cleaned regularly by city staff, were considered workplaces under Ontario’s Occupational Health and Safety Act (OHSA). On June 16, 2009, a 14-year-old girl tried to sit on a changing table attached to the wall while waiting for a stall in the women’s washroom. The wall leaned forward and collapsed on the girl, killing her. Though no workers were present, both Grinham and Argue were charged under the OHSA for providing negligent advice or certification, in the capacity of architect and engineer, that endangered workers.

The court dismissed the charges, pointing out that if Grinham and Argue provided negligent advice, their offence happened years before anything happened. The OHSA specifically stated that no prosecution under the act could take place more than year after the offence in question took place. In this case, the wall collapsed almost two years after Grinham’s certification and more than three years after Argue’s. Neither of them were involved with the workplace over that time and had no control over any other factors that could have contributed to the danger, said the court. In addition, the court found the OHSA could not be interpreted to label such offences as continuing offences. The allegations against the two men related to specific acts at specific times, and therefore the OHSA’s limitation period applied.

“The last day on which advice which allegedly endangered a worker was provided was years prior to the collapse of the wall,” said the court. “The fact that the danger may have continued does not serve to extend the limitation period in my view.”

However, the court found the wall collapsed in circumstances that it wasn’t expected to, and though a worker wasn’t present at the time of the accident, it could have happened when a worker applied pressure to the change table. As a result, there was a danger to workers that created an unsafe workplace. However, Grinham and Argue could not be held responsible due to the passing of the limitation period, said the court.

For more information see:

Ontario (Ministry of Labour) v. Guelph (City), 2012 CarswellOnt 5283 (Ont. C.J.).

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