The City of Guelph acted reasonably when it relied on the stamped drawing of an architect and engineer as evidencing compliance with all legal requirements, an Ontario judge has held in dismissing an Occupational Health and Safety Act charge against the City of Guelph.
The charge resulted from the death of a fourteen year old girl when a concrete block privacy wall collapsed on her as she tried to boost herself up onto a change table which was affixed to the wall.
The City was charged under the Occupational Health and Safety Act with failing, as an employer, to ensure that the wall 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". Mr. Justice Epstein of the Ontario Court of Justice found that the "allowable unit stresses" standard no longer existed in the Building Code at the time of the design and construction of the building. Rather, the "limits states design philosophy" had replaced it. The Ministry of Labour had, however, failed to update the language in the OHSA. As such, "The wording in the charging section has no applicabliy to the circumstances of this case in that the concept of allowable unit stress had expired long before" the design and contruction of this building, which had been designed in accordance with the "limits states design discipline". As such, the prosecutor had not proven beyond a reasonable doubt that the City had committed the offence.
According to Justice Epstein, even if the City had committed the offence, it was reasonable for the City to rely on the stamped drawing of the architect and engineer. It was not readily apparent that the drawing was defective, and in any event the "default position in the industry" is that if walls are joined as shown on the drawing, they need to be interlocked. There was also an "outright failure" of the masonry subcontractor to properly construct the wall to be stable. As such, the City had established due diligence by relying on the stamped drawing.
Occupational Health and Safety Act charges against the architect and engineer were previously dismissed for limitations reasons (see our previous post here) but that decision is under appeal.
The court's acquittal of the City will be of some comfort to employers who rely on stamped documents of architects and engineers in constructing buildings – at least where it could not have been apparent from the drawing that it was deficient.
Her Majesty the Queen v. Corporation of the City of Guelph, Ontario Court of Justice, February 2, 2012 (Epstein J.)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
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