An Ontario judge has refused to permit a professional engineer
employed with the Ontario Ministry of Labour to testify as an
expert in a health and safety prosecution.
A company was charged under the Occupational Health and
Safety Act after a drill rig tipped over on a construction
site, causing one death and one serious injury. The cause of
the accident was key to the case.
The MOL engineer had prepared a report in which he explored all
of the possible causes from an engineering perspective. He
concluded the report with his own opinion as to the root cause of
The judge held that the MOL engineer was "inextricably
bound up with the investigation of this case". He was
the first person on the scene of the accident along with the
MOL's lead investigator. He had been closely involved in
the MOL's investigation throughout. At each point in the
MOL's investigation, the engineer had been performing at least
two roles: (1) he was himself investigating directly by his
observations, and (2) he was assisting the investigators by being
the contact person with the technical knowledge beyond the
expertise of the lead MOL investigator.
The judge noted that being an MOL employee did not disqualify
the engineer from offering an expert opinion.
However, his extensive involvement in the investigation that led
to the MOL laying the Occupational Health and Safety Act
charges, and his enthusiastic identification with the prosecution
during the trial, led the judge to conclude that the engineer could
not give an unbiased opinion on the root cause of the collapse of
the drilling rig. As such, the court refused to qualify the
MOL engineer to give expert evidence at trial.
The Ministry of Labour in Right of the Province of Ontario
v. Advanced Construction Techniques Ltd. (Justice B. Knazan,
April 21, 2015)
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