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
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
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