Employers and others are generally protected by actions against
them which occur outside of limitation periods. That applies
to charges under occupational health and safety legislation
too. But when do those limitation periods begin to run? A
recent decision of the Ontario Court of Justice in
R. v. Corporation (City of Guelph) (PDF) has said they may
begin to run at different times for different entities. In
this case, the court said that although the limitation period in
the Ontario Occupational Health and Safety Act (the
"OHSA") began to run, for the employer, when the accident
occurred, it began to run much sooner for the architect and
engineer involved in the construction of the project that led to
the accident. As such, charges could proceed against the
employer, but not the architect or engineer.
In 2003, the City of Guelph undertook a project at one of its
parks that involved the erection of certain buildings, including
washrooms. There was both an architect and a professional
engineer involved in the project. The drawings for the project
were prepared and approved by the architect, and the structural
design prepared and approved by the professional
engineer. Construction on the project was completed on June
In June of 2009, a fourteen year-old student was killed when a
concrete wall in the women's washroom at the park fell on
The Charging Provisions
The architect and engineer were both charged under Section 31(2)
of the OHSA which creates an offence if a worker is endangered as a
result of advice given or a certification required under the OHSA
that is made negligently or incompetently. Section 69 of the
OHSA provides a one-year limitation period on prosecutions from the
last act or default upon which the prosecution is based.
Although the student was not an employee, the City of Guelph was
nevertheless charged with failing, as an employer, to ensure that a
wall or other part of a workplace was capable of supporting all
loads to which it could be subjected.
The Legal Arguments
The architect and professional engineer argued that the charges
against them should be dismissed as out of time. They argued that
the charges were laid more than one year after the last act or
default upon which the prosecution is based had occurred. In
response, the Ministry of Labour argued that the charging
provisions were continuing offences and the limitation period did
not begin to run until the collapse of the wall, which was less
than a year prior to the charges being laid. The Ministry also
argued that the principle of "discoverability" applied to
the offences and that the limitation period did not begin to run
until the wall collapsed because that is when the negligence was
To make its decision, Justice Epstein said it was necessary to
determine what it was that the defendants did to bring about the
charges. He concluded that, with respect to the architect and
engineer, the allegation was that they provided negligent or
incompetent advice which endangered the student. That advice
occurred years before collapse of the wall, and neither the
architect nor the engineer were involved in any way with the
workplace within the year preceding the laying of charges.
Justice Epstein also rejected the government's argument that
the offence only crystallizes when an individual is endangered as a
result of the advice. Further, Justice Epstein rejected the
discoverability argument, noting that unlike other statutes the
OHSA does not include a discoverability principle.
But the architect's and engineer's argument was not
available to the City of Guelph. The charge against the City
under Section 25(1)(a) did not relate to a single act and was not
tied to the construction process. Rather it imposed a duty on
the City, in its role as employer, to ensure the workplace is
maintained in a safe manner. This obligation, the Court said,
is one that continued beyond any construction and endured for as
the long as the site remained a workplace.
On this basis, the charges against the architect and engineer,
but not the City of Guelph, were dismissed as having been laid
outside the limitation period.
Application to Employers
Given that many jurisdictions across Canada have
similarly-worded provisions imposing liability on professionals,
such as architects and engineers, the decision will provide some
comfort to those parties that they cannot be found liable
for advice given more than one year after the advice is
rendered. However, the same does not apply to employers.
Instead, employers have a continuing obligation to ensure their
workplaces are maintained in a safe manner, an obligation that
likely lasts until the workplaces stop being workplaces.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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