[author: Adrian Miedema]
An engineer and architect were not guilty of Occupational Health and Safety Act charges where the wall collapsed more than one year after their work was completed. The Ontario Occupational Health and Safety Act states that “No prosecution under this Act shall be instituted more than one year after the last act or default upon which the prosecution is based.”
In 2003, the City of Guelph erected buildings, in one of its parks, containing washrooms and other facilities. An engineer and architect were retained. The project was substantially completed in June 2004 and in November 2005, the engineer sent a letter to the architect’s firm confirming that the structural work was “complete” and “satisfactory”. In October 2007 the architect sent a letter to the City confirming that the buildings were “suitable for the intended use and occupancy”.
Tragically, in June 2009, a fourteen-year-old student was killed when a concrete block privacy wall in the women’s washroom in the park collapsed on her.
The engineer and architect were charged under section 31(2) of the Ontario Occupational Health and Safety Act which makes it an offence for an architect or professional engineer to provide negligent advice or certification that endangers a worker.
Justice Epstein of the Ontario Court of Justice in Guelph held that, “The last day on which advice which allegedly endangered a worker was provided was years prior to the collapse of the wall. The fact that the danger may have continued does not serve to extend the limitation period in my view . . . Neither [the architect or engineer] provided any negligent or incompetent advice for years prior to the collapse of the wall. ”
This decision will be of some comfort to engineers and architects who might otherwise be left to worry that years after their work was completed on a project, an accident could lead to charges against them.
The court decided not to dismiss the charges against the City itself because the City had an ongoing duty to ensure that the wall was safe for workers.
R. v. Corporation (City of Guelph), 2012 ONCJ 251 (CanLII)