The trial judge was correct in acquitting Greater Sudbury's on Ministry of Labour charges connected to a 2015 fatality at a job site, a Sudbury judge has ruled.
In a decision released this week, Superior Court Justice John Poupore rejected the ministry's appeal and ruled he could find no fault with Ontario Court Justice Karen Lische's 2018 decision absolving the city of responsibility in the death of Cecile Paquette.
“It is clear from the trial judges’ reasons that she identified all of the issues and correctly decided them on the facts she found,” Poupore wrote. “I see no error in the trial application of the facts in this case to the definitions of 'employer' and 'constructor' with respect to the project. Accordingly the appeal is dismissed.”
Paquette, 58, died Sept. 30, 2015, at the corner of Elgin and Beech streets when a grader operator ran her over, killing her.
Greater Sudbury pleaded not guilty to seven charges from the Ministry of Labour, which attempted to prove the corporation was the constructor and the employer of the project, and therefore culpable in Paquette's death.
Lische ruled the city was not acting as either the constructor or the employer on the Elgin Street project. Furthermore, the Ministry of Labour failed to show the city was the constructor, she said.
“It is crystal clear, according to the evidence at trial, the owner was the city and constructor was Interpaving,” Lische said. “This is not a case where the city is attempting to evade its statutory duty. This court finds that the MOL has failed to show that the city assumed the role of constructor or assumed control over the Elgin project.”
Interpaving, the contractor on the job that employed the grader operator, was convicted in March 2018 of failing to provide a signaller during the operation of a moving machine in a workplace while the operator’s view was blocked. The company was fined $195,000.
In his ruling, Poupore drew from language in the Ontario Health and Safety Act that defined exactly who and who isn't a constructor on a job site.
“The city had reserved to itself the right to inspect Interpaving’s work and progress on the project for quality assurances purposes,” Poupore wrote. “Section 1(3) of the OHSA limits the definition of a constructor on a site as follows: 'An owner does not become a constructor by virtue of the fact that the owner has engaged an architect, professional engineer or other person solely to oversee the quality control at a project.'”
As a result, he “agrees with her conclusion that the city did not exercise control over the site to the point where it became the constructor.”
