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Death of supervisor results in $200K fine for Hamilton construction firm

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February 12, 2021
By OHS Canada

Compliance & Enforcement Health & Safety Construction Conviction editor pick fatality ontario

Company had prior conviction involving death of young worker

A construction company in Hamilton, Ont., was fined $200,000 on Feb. 11 following a 2018 mini-excavator incident that resulted in the death of a crew supervisor.

The penalty against McNally Construction also warranted a 25-per-cent victim fine surcharge under the Provincial Offences Act.

According to a court bulletin, the incident occurred on June 21, 2018, when a mini-excavator being operated in an underground pipe tipped over. The machine did not have the required cab or screen, which may have protected the worker.

The diameter of the pipe measured 1.8 meters at that location.

The tip over protection system (TOPS) of the mini-excavator had been removed prior to it being lowered down and into the pipe. It is not known when the TOPS was removed or by whom. A TOPS protects a mini-excavator from tipping over and can protect an operator of a mini-excavator from overhead hazards.


The supervisor decided to operate the mini-excavator. While operating it the supervisor was fatally injured when the front tracks of the machine lifted, causing the worker to be pinned between the top of the inside of the pipe and parts of the mini-excavator.

Section 99 of the Construction Projects Regulation (Ontario Regulation 213/91) requires that a cab or screen be provided to protect a worker who is exposed to an overhead hazard while operating a vehicle.

As such, the defendant failed to ensure that the equipment, materials and protective devices provided by the defendant were used as prescribed, contrary to section 25(1)(d) of the Occupational Health and Safety Act.

This was the second offence for the defendant under the act. There is one prior conviction from 2013 involving the death of a young worker. The fine imposed on the prior conviction was $170,000 after a plea of guilty.

Taken into account in this prosecution were steps taken by the defendant such as ensuring all equipment is only operated when the required protective devices are equipped during use; paying for the unexpected burial expenses incurred by the victim’s family; and the company’s establishment of a college bursary to recognize the victim’s contributions in mentoring the company’s young construction workers, among other actions.


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