A Sudbury Superior Court judge has upheld the 2018 ruling of a provincial judge, finding that the City of Sudbury was not guilty in the death of 58-year-old Cécile Paquette.
Paquette was killed while crossing the intersection of Elgin Street and Beech Street on Sept. 30, 2015 when a grader operator ran her over.
The contractor hired by the city for the road work, Interpaving, 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 and Paquette’s family received a $350,000 settlement from them.
But that wasn’t the end for the city, and the ongoing court dispute has largely centred on the definition and responsibilities of an “employer” and “constructor” under Ontario law.
At the trial in 2018, the city pleaded not guilty to seven charges from the Ministry of Labour, which attempted to prove the city’s corporation was both the constructor and the employer of the project, and therefore culpable in the circumstances that led to Paquette's death.
Greater Sudbury argued that it was the employer, and Interpaving was the constructor, and therefore largely responsible for the job site.
The trial judge, Ontario Court Justice Karen Lische, ruled the city was not acting as either the constructor or the employer on the Elgin Street project, and added in her decision that even if the city was acting as the employer, they had done their due diligence.
But the Ministry, through the Crown, appealed that ruling, and appeared in Superior court in 2019. That appeal was dismissed, with Justice John Poupore finding that Lische's trial decision was correct.
But while the Poupore’s decision upheld a part of Lische’s decision, it did not address the finding that the city acted with due diligence. That meant that once again the Ministry would attempt an appeal, taking the case to the provincial court of appeal before Justice David Brown.
Brown granted them the right to appeal to Superior court, noting in his decision that the appeal was in the public interest, considering how often municipalities hire contractors, and set aside the decision.
The city appealed to the Supreme Court of Canada, who upheld Brown’s decision to rehear the case and sent the matter back to Superior Court for Cornell’s consideration.
In his decision, Cornell states that the Ministry of Labour believes the trial judge (Lische) “made overriding and palpable errors sufficient to warrant a finding by this court that the city had not exercised due diligence.”
Cornell didn’t agree with the ministry, and upheld the initial ruling, dismissing the Ministry’s appeal with his Aug. 23 decision.
“If the city had exercised the amount of control over the project that was urged by the appellant (the Ministry), the city would have been a constructor, something that has been rejected at every level of appeal,” said Cornell in his decision. He stated he agreed with Justice Poupore’s 2019 ruling.
“The appellant is really asking this court to look at the evidence and come to a conclusion different from that of the trial judge, something that is not permitted.”
Cornell wrote that it has been “well established” that an appeal court must show “considerable deference” to rulings unless the appeal judge is satisfied that there was a “palpable and overriding error” and this error is shown to have affected the result.
He found that Lische, in her 2018 ruling, made no palpable or overriding errors “that would permit this court to interfere with her findings, and the conclusions that were based on them.”
Accordingly, he wrote, the appeal is dismissed.
Jenny Lamothe covers court for Sudbury.com.