by Rosalind H. Cooper
Employers and others are generally protected by actions against them that occur outside of limitation periods. That applies to charges under Canadian occupational health and safety legislation, too. But when do those limitation periods begin to run?
A recent decision of the Ontario Court of Justice in R. v. Corporation (City of Guelph) has said they may begin to run at different times for different entities. In this case, the court said that although the limitation period in the Ontario Occupational Health and Safety Act (OHSA) began to run for the employer when the accident occurred, it began to run much sooner for the architect and engineer involved in the construction of the project that led to the accident. As such, charges could proceed against the employer, but not the architect or engineer.
Background facts
In 2003, the city of Guelph undertook a project at one of its parks that involved the erection of certain buildings, including washrooms. There was an architect and a professional engineer involved in the project. The drawings for the project were prepared and approved by the architect, and the structural design prepared and approved by the professional engineer. Construction on the project was completed on June 18, 2004.
In June 2009, a 14-year-old student was killed when a concrete wall in the women’s washroom at the park fell on her.
Charging provisions
The architect and engineer were both charged under Section 31(2) of the OHSA, which creates an offense if a worker is endangered as a result of advice given or a certification required under the OHSA that is made negligently or incompetently. Section 69 of the OHSA provides a one-year limitation period on prosecutions from the last act or default upon which the prosecution is based.
The city of Guelph was charged with failing, as an employer, to ensure that a wall or other part of a workplace was capable of supporting all loads to which it could be subjected.
Legal arguments
The architect and professional engineer argued that the charges against them should be dismissed as out of time. They argued that the charges were laid more than one year after the last act or default upon which the prosecution is based had occurred.
In response, the Ministry of Labour argued that the charging provisions were continuing offenses and the limitation period didn’t begin to run until the collapse of the wall, which was less than a year prior to the charges being laid. The Ministry also argued that the principle of “discoverability” applied to the offenses and that the limitation period didn’t begin to run until the wall collapsed because that’s when the negligence was discovered.
Decision
To make the decision, Justice M.J. Epstein said it was necessary to determine what it was that the defendants did to bring about the charges. He concluded that, with respect to the architect and engineer, the allegation was that they provided negligent or incompetent advice that endangered a worker. That advice occurred years before collapse of the wall, and neither the architect nor the engineer were involved in any way with the workplace within the year preceding the laying of charges.
Epstein also rejected the government’s argument that the offense only crystallizes when a worker is endangered as a result of the advice. Further, Epstein rejected the discoverability argument, noting that unlike other statutes the OHSA doesn’t include a discoverability principle.
But the architect and engineer’s argument wasn’t available to the city of Guelph. The charge against the city under Section 25(1)(a) didn’t relate to a single act and was not tied to the construction process. Rather it imposed a duty on the city, in its role as employer, to ensure the workplace is maintained in a safe manner. This obligation, the court said, is one that continued beyond any construction and endured for as the long as the site remained a workplace.
On this basis, the charges against the architect and engineer but not the city of Guelph, were dismissed as having been laid outside the limitation period.
Application to employers
Given that many jurisdictions across Canada have similarly worded provisions imposing liability on professionals, such as architects and engineers, the decision will provide some comfort to those parties that they can’t be found liable for advice given more than one year after the advice is rendered. However, the same doesn’t apply to employers. Instead, Canadian employers have a continuing obligation to ensure their workplaces are maintained in a safe manner, an obligation that likely lasts until the workplaces stop being workplaces.
