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An engineer and architect were not guilty of Occupational
Health and Safety Act charges where the wall collapsed more
than one year after their work was completed. The Ontario
Occupational Health and Safety Act states that "No
prosecution under this Act shall be instituted more than one year
after the last act or default upon which the prosecution is
based."
In 2003, the City of Guelph erected buildings, in one of its
parks, containing washrooms and other facilities. An engineer and
architect were retained. The project was substantially completed in
June 2004 and in November 2005, the engineer sent a letter to the
architect's firm confirming that the structural work was
"complete" and "satisfactory". In October 2007
the architect sent a letter to the City confirming that the
buildings were "suitable for the intended use and
occupancy".
Tragically, in June 2009, a fourteen-year-old student was killed
when a concrete block privacy wall in the women's washroom in
the park collapsed on her.
The engineer and architect were charged under section 31(2) of
the Ontario Occupational Health and Safety Act which makes
it an offence for an architect or professional engineer to provide
negligent advice or certification that endangers a worker.
Justice Epstein of the Ontario Court of Justice in Guelph held
that, "The last day on which advice which allegedly endangered
a worker was provided was years prior to the collapse of the wall.
The fact that the danger may have continued does not serve to
extend the limitation period in my view . . . Neither [the
architect or engineer] provided any negligent or incompetent advice
for years prior to the collapse of the wall. "
This decision will be of some comfort to engineers and
architects who might otherwise be left to worry that years after
their work was completed on a project, an accident could lead to
charges against them.
The court decided not to dismiss the charges against the City
itself because the City had an ongoing duty to ensure that the wall
was safe for workers.
FMC is one of Canada's leading business and litigation law
firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
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strive to excel as a workplace of choice for our people. Regardless
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consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
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our clients' needs. Visit:
www.fmc-law.com
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