A trio of municipal employees took the witness stand on the fifth and final day of the trial against the City of Greater Sudbury for the Sept. 30, 2015, death of Cecile Paquette.
The city is being charged with with not providing signallers for the grader operator, not erecting a 1.8-metre "sturdy fence" to separate the public from the construction site, and not implementing a traffic protection plan, as well as not ensuring that its contractor, Interpaving, was following those three sections of Ontario's Occupational Health and Safety Act.
Rob Rocca, who was the engineering technologist on the Elgin Street construction project at the time of the incident, was first on the stand, followed by field inspector John Temelini, and finally the city's general manager of growth and infrastructure, Tony Cecutti.
While much of the questioning for all three men from both Crown prosecutor David McCaskill and defense attorneys Frank Portman and Ryan Conlin centred on determining who was the "constructor" on the job site, it was Temelini's testimony that shared some insights into the day-to-day work at the site.
Temelini testified he has been an employee with the city for 28 years and has worked on numerous construction projects in the capacity of field inspector. In his role, Temelini was on site at Elgin Street on a daily basis with his main duty to ensure quality assurance.
At the time that he was working at the Elgin site, the city was in the process of transitioning to new a protocol with respect to these projects, under which Temelini was answering to his direct superior, Shawn Hinton, who was the chief field inspector.
In his testimony, Temelini explained there were problems with people walking onto the construction site from day one. He said he received numerous complaints from pedestrians about a lack of access to pathways to get across Elgin Street.
"It was a problem for the entirety of the project," said Temelini. "I worked with the contractors to try to get pathways put in so people could get through. We had issues with people wandering into the site, but there's only so much you can do."
At one point, the site contractor, Interpaving Limited, installed a fence in front of the NISA building, 36 Elgin Street, to prevent pedestrians from walking out into the area where contractors were operating heavy machinery.
"Was that the kind of thing that you were talking to the contractor about, this kind of protection," McCaskill asked Temelini, who nodded "yes" in response.
"What was their response to you speaking to this, it sounds like you asked more than once," said McCaskill.
"[Interpaving would] ignore it," said Temelini. "They'd say they'd take care of it, but it never got taken care of."
Questioning shifted to a date that has been highlighted a number of times throughout the course of the trial — Sept. 15, 2015, when Greater Sudbury Police officers were supposed to be controlling the intersection at Elgin Street and Beech Street, the same intersection where Paquette was killed just two weeks later.
"I showed up that morning (Sept. 15) to what was basically chaos at the intersection," said Temelini. "There were flag men in the intersection, there was an excavator at the side of the road, there was excavation going on, there were dump trucks moving gravel, there were pedestrians trying to get across, there were vehicles trying to get in and out."
Temelini tried to get a handle on who was in charge of the site for Interpaving, and spoke to someone he only remembered as "Mike," who told Tememlini that his supervisor had said it was okay to go ahead with what the contractor was doing.
Interpaving supervisor Stephane Girouard showed up to the site after Temelini contacted him about the situation.
"He told me that I was blowing things out of proportion, and I told him to get this rectified, in other words get police or shut it down," said Temelini. "To my understanding Shawn (Hinton) showed up and the operation was shut down."
"How long did it stay shut down?" asked McCaskill.
"All day. They came back the next day and police were on site."
On the day of the incident, Sept. 30, Temelini was once again on site and had spoken to Benoit St. Jean, the operator of the grader that struck and killed Paquette that afternoon. At the time that Temelini arrived at the site, St. Jean was working between Ste. Anne Road and Beech Street, fine-tuning the grade of the road to allow for asphalt to be poured.
"Did you have any concern about the work he was doing?" said McCaskill.
"I told him that he needed flagging. He had vehicles coming in off Ste. Anne (dump trucks) and there were flag men watching the vehicles come off Ste. Anne, but none at Beech Street, because there were cars coming in behind the trucks and it was getting congested, and they didn't know where to go," said Temelini.
"I asked him who was in charge and he said 'I guess I am'," Temelini said, explaining that he had dealt with a number of different foremen over the course of his time as the inspector on the job site.
"I also told him to slow down ... he was going pretty quick," said Temelini. "I told him not to go past Beech Street because he didn't have proper traffic control there."
"Was that issue of traffic control in lighted intersections an issue on this project?" said McCaskill.
"Yes it was."
Temelini was in the site trailer having lunch when the incident occurred. That turned out to be his last day on that job site as he chose to remove himself.
Defence attorney Ryan Conlin's cross-examination of Temelini focused on what authority the site inspector had while on the job site.
"Did you have the authority to direct workers?"
"No, that wasn't my function, I can assist them," Temelini responded.
He explained that he received a number of complaints from the public during his time as the site inspector.
"I'd say I spent more time than usual fielding complaints on this job," Temelini said.
"Do you have the power to discipline workers on a job site?" said Conlin.
"No."
"Why not?"
"I'm not their supervisor. I can bring the issue up to them but I can't discipline them."
Rob Rocca was the engineering technologist for the Elgin Street project and was also on site and in the trailer when the incident occurred, but didn't leave the trailer.
"I heard a scream from outside ... I didn't go out, I didn't want to see it," Rocca testified.
Between the Crown's and defense counsel's time with both Rocca and Tony Cecutti, much of the focus was once again on the responsibilities and authority held by city employees involved with the project.
Rocca, now a manager of design services with the city, testified his job at the time was to oversee change orders that would impact the scope of the project.
When questioned if he had any say in the site traffic control plan, Rocca responded, "not unless it was outside the scope of the project. So if the contractor was requesting to close a road, that was something I would have been made aware of."
"Who's responsible for making sure police are on site when they're needed," said McCaskill.
"I don't know."
"What's the process for this?"
"Again, I'm not responsible for this, so I don't know."
When it came time for McCaskill to question the city's manager of growth and infrastructure, Tony Cecutti, he pulled no punches, suggesting to Cecutti that the city's general conditions for construction contracts insulates them from ever being identified as the constructor.
"Any city contract requires the contractor who executes the contract to assume that role of constructor," said McCaskill, which Cecutti confirmed was correct.
"If they refuse to do so, they don't get the contract," said McCaskill.
"I guess," said Cecutti.
"So the city has essentially created this clause in its contract for the purpose of insulating itself from ever being the constructor, correct? This is a term that's put into every contract, it's not negotiable."
"No, it's not negotiable."
McCaskill continued to pick through the city's general conditions pointing to a number of clauses that in a sense, give the city the ulimate authority over job sites.
From the document listing the general conditions, McCaskill read:
If the contractor fails to provide for the safe passage of and control traffic on any road or detour under the contract for which he is responsible; and if the contractor fails to correct forthwith such unsatisfactory conduct, he can be so directed in writing. The general manager may immediately correct the unsatisfactory condition and take such other action as he deems necessary to provide for the safe passage and control of traffic.
"Do I read this correctly in saying that ultimately you can override and assume complete control over traffic protection if the contractor is not doing its job?"
Cecutti explained that these types of conditions typically happen after hours when work crews are not on site.
"For example, if in front of a hospital, if a contractor left the site in a condition where ambulances couldn't get into the hospital, we could go out there and do what we needed to do to restore that proper access and invoice the contractor back for those works," said Cecutti.
Both sides will enter their closing arguments to judge Karen Lische in writing, before returning to court for a decision on June 13.
Interpaving Limited was fined $195,000 on March 28, under the Occupational Health and Safety Act after the company after was found guilty of failing to provide a signaller at a 2015 construction project that resulted in the death of Cecile Paquette.
