Redefining the Workplace

More than three years after a washroom privacy wall collapsed and killed a teenager, the Ontario Court of Justice has found the City of Guelph not guilty of a workplace safety infraction.

The Ministry of Labour charged the city with failing to provide a safe workplace by ensuring that every part of the structure could resist all loads to which it was subjected, under the Occupational Health and Safety Act (OHSA). A student was killed on June 16, 2009 when a concrete block privacy wall in the women’s washroom at South End Com­munity Park — owned and operated by the City of Guelph — collapsed as she boosted herself up onto a change table.

 “Neither the City nor the community will forget the tragic incident that claimed the life of 14-year-old Isabel Warren,” said Ann Pappert, the city’s chief administrative officer, in a statement following the ruling on February 12. “We hope the court decision offers some closure and our thoughts are with Ms. Warren’s family and friends.”

Although the deceased teenager was not a worker and no worker was present at the time of the incident, the decision noted that the washroom was a workplace at all times.

“Employees of the City of Guelph would clean the washroom facilities and therefore, it was for all times and for all purposes, a workplace,” says Norm Keith, a lawyer and partner at Gowling Lafleur Henderson LLP in Toronto, who represented the Corporation of the City of Guelph. He adds that an employer must consider the safety of both workers and the public if the latter has access to any part of a workplace.

William Lin, a spokesperson for the labour ministry, adds that the Crown is appealing the earlier dismissal of charges against the architect and the engineer. “The matter is still be­fore the courts and we cannot comment further.”

BURDEN OF PROOF

One central issue in the case revolves around who is respon­sible for ensuring that the wall was properly designed and constructed. In 2003, the city engaged the services of a con­sulting firm for the design, tender and contract administra­tion of the park project, which included the women’s wash­room. The consulting firm then subcontracted the project to Grinham Architect.

The city also entered into a contract with a construction and infrastructure development company, which subcon­tracted the project to Harrington Construction Inc. that, in turn, hired masonry contractor, J.D. Masonry Inc. to con­struct the wall.

Evidence heard in court revealed that the wall, which was put up some five years before it collapsed, was improperly constructed. The privacy wall extended less than two metres from the exterior wall into the washroom.

The wall, which was just over two metres high and did not reach the ceiling, had a change table bolted to it through brackets. One end of the wall abutted the exterior wall, but the other end that extended into the room was freestanding. It was apparent after the collapse that the wall had not been tied into the exterior wall or to the floor of the change room.

Keith says the Ontario Building Code sets out proper re­quirements, including those for a privacy wall like the one in question, to be connected to the exterior wall. “And that is the problem — it wasn’t.”

The decision points out that the drawing — stamped with the professional seals and signatures of the engineer, the ar­chitect and the City of Guelph’s building division — did not detail any anchors, tie-ins or other mechanical support need­ed for the privacy wall.

Keith thinks that the ruling is “fair and proper” on the facts of the case. “If there had been a conviction of a corpora­tion, then it would mean that first of all, you could not rely upon an engineering or architect stamp. Secondly, there is a much higher standard on municipal building departments to review drawings and buildings,” he suggests. “I don’t think it is unfair to rely upon designers with professional qualifi­cations, especially when they represent as they did, that the construction met those requirements.”

SAFE TO ASSUME

Kelvin Teepell, senior mason and founder of Ontario Ma­sonry Restoration Ltd. in Mississauga, agrees. “As long as it has got the engineering stamp on it there, he is like God. That is supposed to be fine and really, nobody can overrule him.”

Justice Michael Epstein, who presided over the hearing, came to the same conclusion, noting that the stamping of drawings by a professional architect or engineer indicated an assumption of responsibility “that could be relied upon by others, including the City of Guelph.”

The applicable standards, published by the Canadian Stan­dards Association (CSA) that are pertinent to the wall that collapsed are S304.1-94 Masonry Design for Buildings and A371-94 Masonry Construction for Buildings. The former sets out the standards for masonry design while the latter stipu­lates the requirements for construction.

The S304.1-94 standard states that in addition to the in­formation required by the National Building Code of Canada, the drawings and related documents for structures designed in accordance with this standard shall include, where appro­priate: the material to be used in masonry; position, location, type, spacing and size of ties, anchors, lifting devices and other supports; and details of bonding, tying and anchorage of masonry, amongst other things.

Dr. Robert Drysdale, professor emeritus with the Depart­ment of Civil Engineering at McMaster University in Ham­ilton, Ontario, was retained by the labour ministry to pro­vide an opinion in this case. He was critical of the drawings, which showed no reinforcement of the privacy wall and did not specify the method of attachment to the floor or to the exterior wall.

“In the event that the information required was not con­tained in the drawings, then one would expect to find such information in the specifications,” writes Justice Epstein in the decision. But “the specifications provided no indication to the masons as to how the wall was to be built and secured.”

Dr. Drysdale believes that faced with such circumstances, a masonry contractor could — but is not required to — bring this omission to the designer’s attention.

The defence called a professional engineer — identified only as J. Wilkinson — who argued that the notes on the drawing clearly indicated that any ambiguity in the drawings, specifications or details is to be reported to the landscape ar­chitect for direction. “In the absence of such a note, then it should have been clear to the masonry contractor that ties should have been installed in conformance with the CSA standards,” Wilkinson argues.

“It is clear to me on the evidence in this case that there was an outright failure on the part of the masonry subcontractor to properly construct the privacy wall,” Justice Epstein writes. “Through training and experience, it should have been obvi­ous to the masons that this wall had to be connected to the exterior wall or supported in some other fashion.”

Technical engineering information and evidence is im­portant in cases of this nature, Keith observes. The require­ment in the OHSA that was alleged to have been breached was a requirement for a provision of the structural building code to be complied with.

“When you have technical obligations under the OHSA, you need technical expertise to confirm compliance and hopefully, compliance confirmed by engineering is reliable. It certainly was relied upon in this case” — even if it was im­properly assessed, he suggests.

DUE DILIGENCE

Another issue that was considered in court was whether or not the City of Guelph exercised due diligence in ensuring that workers are provided a safe workplace.

Crown counsel David McCaskill took the position that the city failed to live up to its core function as a municipal regu­lator to ensure that it provides building permits only for safe construction projects. He argued that the city was negligent in issuing a building permit when the structural integrity of the privacy wall as shown in the drawing was deficient.

As such, he claimed the city failed in its role as an em­ployer to ensure that a workplace was safe when it permitted a privacy wall so lacking in structural integrity to be built.

The city was aware that the structural engineer who de­signed the privacy wall was involved in an earlier project on which there had been a wall collapse. McCaskill argues that that knowledge should have served as an alert, prompting the city to question the engineer’s competency and exercise greater scrutiny before issuing the building permit.

Justice Epstein reasoned that there is ample evidence to show the city has insulated itself from liability by contract­ing out the project from the outset and taking no part in the design or construction of the project. It also reasonably relied on the consulting firm’s expertise to oversee the project.

Letters from the engineer and architect confirming that the structural work was satisfactorily completed in general compliance with construction documents served as further proof that the city has acted reasonably — in accordance with provincial legislation and in a manner consistent with the practice of other municipalities in Ontario — in setting up and staffing its building service.

“I am satisfied on a balance of probabilities that the city reasonably believed in a mistaken set of facts, rendering any act or omission on its part innocent,” he concludes.

Keith says having a joint health and safety committee in­spect the workplace is important in demonstrating that an employer has done its due diligence and is compliant with the oh&s requirements. “I think the regular inspection of a workplace by the joint health and safety committee is a key party of the due diligence defence.”

CONFLICTING FINDINGS

He adds that the ruling also “places all employers under some responsibility for the health and safety of the public who uses a workplace facility.” It also gives a broader and more liberal interpretation of the meaning of workplace than the Blue Mountain resort decision.

In that case in 2007, a guest drowned in a swimming pool at the resort in Collingwood, Ontario. The labour ministry was of the view that the incident was reportable, but Blue Mountain argued that the pool was not a workplace and no workers were present when the drowning occurred.

In February, the provincial Court of Appeal overturned previous rulings and found that the OHSA only requires em­ployers to report critical injuries or fatalities at a workplace with a connection to a realistic risk to worker safety.

“Both cases involve a fatality of a member of the public at a place where workers work,” Keith notes. However, he says there are some arguable inconsistencies between the two cases relating to whether or not the place where the accident occurred is governed by the OHSA.

In the Blue Mountain decision, the ruling found that there was not a sufficient connection to workers’ risk since the drowning occurred in a swimming pool. As such, it was not a reportable incident. However, the City of Guelph case says the change table and the unstable wall posed a hazard to city employees who regularly went in to clean the washroom.

Keith takes note of the different findings on the question of whether or not a workplace is governed by OHSA. “In the Blue Mountain case, the court said no and in the City of Guelph case, the court said yes,” he says.

One lesson that employers can take away from this case is to be mindful of the safety of both the public and workers — especially if the former has access to any part of a work­place, Keith advises. “Employers should be aware that their goal should not be, in my opinion, just to be able to win a prosecution. Their goal should be to attempt to prevent these fatalities in the first place.”

Jean Lian is editor of ohs canada.