The Ministry of Labour was in a Greater Sudbury courtroom Friday, arguing the city must be held responsible for a 2015 tragedy that led to the death of Cecile Paquette.
Ministry of Labour lawyer David McCaskill told Superior Court Justice John Poupore the decision to acquit the city “was incorrect in law.”
“(Judge Karen Lische) found the city was neither the employer nor the constructor, which are the two areas upon which the MOL can lay charges,” McCaskill said at the conclusion of the appeal hearing. “We feel those decisions are incorrect in law, and that's why we're here appealing.”
The Ministry of Labour laid charges against the city and private contractor Interpaving in September 2016 under the Occupational Health and Safety Act, almost a year after Paquette was struck and killed by a grader at the intersection of Elgin and Beech streets.
There was no signaller present to control traffic at the site, nor were there any barricades preventing pedestrians from accessing the area, McCaskill said at Friday's hearing.
Ultimately, Interpaving agreed to a set of facts in March 2018 for failing to provide a signaller and was fined $195,000. Two other charges against the company were dropped.
Greater Sudbury was also charged with failing to supply a signaller, as well as failing to erect a 1.8 metre barricade and not implementing a traffic protection plan. The city said at the time it planned to “vigorously” defend itself against the charges, and was ultimately acquitted.
There are three routes the court can take in the appeal process, McCaskill said. Poupore can either dismiss the appeal, agree with the Lische's ruling and uphold the city's acquittal, or he can allow the appeal, which can result in a new trial or a conviction, which is what the Ministry of Labour is seeking.
“We strongly feel the city had some responsibility in the death of this poor, unfortunate woman,” he said. “The Ministry of Labour charged the City of Greater Sudbury as both the constructor and the employer in this case on the basis we believe they were wearing both hats.
“It's a question of how you interpret the facts, and our argument is the judge erred in her interpretation of those fact. We aren't saying she didn't find the facts correctly, we're saying she didn't use them correctly as the law applied. Had she done so, she would have found they city was both an employer and constructor, therefore, liable for the violations that led to Paquette's death.”
Arguing the city was the employer in this situation is the stronger case, McCaskill said.
“The constructor argument is a bit more difficult to make in these circumstances, because Interpaving accepted from Day 1 they were willing to accept they were the constructor. What we're saying is the city took over the role of constructor through a number of events that led up to the Sept. 30 fatality.”
The court learned through the trial the city had shut down the job site on Sept. 15 due to unsafe practices. A number of other instances happened, as well, that essentially saw the city take over the role of constructor, McCaskill said.
“We think the city was doing more than just sitting back and letting Interpaving run things. It wasn't any one discreet moment, but by virtue (of) the way things were running, by Sept. 30, they were the constructor, and that's our argument.”
If Poupore rules in favour of the appeal, that won't absolve Interpaving from any responsibility in the case.
“No one is suggesting Interpaving did nothing wrong -- they did everything wrong. We're not saying they get a free pass, but they've already taken their hit,” McCaskill said.
Poupore's decision whether to grant the appeal will likely take months, the court heard Friday.
