Employer Liability to Provide Safe Workplace is a Perpetual One

In R. v. Corporation (City of Guelph), the Ontario Court of Justice declared that an employer’s duty to maintain a safe workplace is a continuing one to which no time limitations apply.

In 2003, the City of Guelph undertook to construct a building in one of its parks. An architect and engineer were hired for the project. They prepared and approved a design for the building, which was completed in June 2004 and declared satisfactory by both parties in November 2005 and October 2007 respectively.

On June 16, 2009 a 14-year-old Grade 9 student was in this building waiting for a stall in washrooms to become vacant. She idly attempted to hoist herself onto a change table. The wall to which the table was affixed collapsed upon her causing fatal injuries.

The Ontario Occupational Health and Safety Act (OHSA) is provincial legislation that requires employers and employees to maintain health and safety standards in the workplace. The Ministry of Labour promptly charged the City with a contravention of s. 25(1)(e) which provides that “an employer shall ensure that a building, structure or any party thereof or any other part of a workplace, whether temporary or permanent, is capable of supporting any loads that may be applied to it in accordance with the Building Code, any other requirement or good engineering practices”.

The Ministry of Labour then charged the professionals under s. 31(2) which states that “an architect and an engineer contravene the act if as a result of their advice that is given negligently or incompetently, a worker is endangered”. At the material time, the building was a workplace as defined by the OHSA.

By way of defense, both parties claimed that the charges contravened s. 69 of the OHSA, which provides a limitations period which states that “no prosecution under the Act shall be instituted more than one year after the last act or default upon which the prosecution is based”.

The Ministry replied that the principle of discoverability applied to the charges, meaning that the limitations period did not begin to run until the act or omission was discovered. That is, until the wall collapsed.

In determining whether the charges were barred, the court looked at the nature of relevant sections of the OHSA. The Court classified them into two categories: continuing offences and non-continuing offences.

Continuing offences are those that take, or may take, a long time to commit. They are a continuing breach of a duty to take action to put an end to a forbidden state of affairs. They are indicated when the statute provides a penalty for every day that the corrective work is not done, or that the offending activity continues. Generally, these offences are of a passive character consisting of a failure to perform a duty imposed by law. Examples from other cases involving these types of offences are failing to remit money to a government authority and failing to make payment of wages.

On the other hand, non-continuing offences are those in which a one-time event, once committed is complete, concluded, and exists only in the past. These are found wherever the act does not continue, regardless of whether the consequence continues. Examples of these types of offences from other cases are the faulty installation of electrical equipment and construction of a dock without a building permit.

Given this characterization, the court concluded that the incorrect advice of the professionals did not constitute a continuing offence. This meant that the Ministry had just one year from the date their professional advice was rendered to lay the charges.

Next, the court looked at the principle of discoverability, finding that while the actions of the engineer and architect had endangered workers, the words of the section did not intend to impute a discoverability principle into these charges.

However, the court held that the City’s failure to maintain a safe workplace was a continuing offence, making the City liable for every day that the wall could potentially have fallen. The conclusion was supported by the wording of s. 25(1)(e), which speaks to the nature of the offence. Finally, the court found that any other interpretation would frustrate the spirit of the law.

This decision reiterates that employers must be aware of the potential for continuing offences under the OHSA, and their obligation to continually maintain a safe workplace.