Court File and Parties

Court File No.: Guelph

Date: 2013-02-12

Ontario Court of Justice

Between:

Her Majesty the Queen (Ministry of Labour for Ontario)

— AND —

Corporation of the City of Guelph

Before: Justice M.J. Epstein

Heard on: February 13 and 15, 2012; April 20, 2012; August 20, 23, 27, 28 and 29, 2012; September 17, 18 and 20, 2012

Reasons for Judgment released on: February 12, 2013

Counsel:

• Mr. D. McCaskill and Mr. S. Succi for the Crown
• Mr. N. Keith for the Corporation of the City of Guelph

Judgment

Epstein, J.:

Introduction

[1] The Corporation of the City of Guelph is charged between the 25th day of June, 2003 and the 16th day of June 2009, 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 may be subjected, without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act, at a workplace located at 25 Poppy Drive, Guelph, Ontario, contrary to s. 25(1)(e) of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1, as amended.

[2] The charge arises from the collapse of a privacy wall in a women's washroom in a park owned by the City of Guelph. The washroom was constructed in 2004 and the collapse of the wall occurred in 2009. Originally L. Alan Grinham, the architect of the construction project and Larry Argue, the engineer on the project, were charged, along with the City, by the Ministry of Labour. The charges pertaining to them were under s. 31(2) of the Occupational Health and Safety Act and alleged negligence or incompetence in giving advice which endangered a worker at a workplace. At the outset of the trial I granted a preliminary motion from Grinham and Argue and dismissed the charges against them on the basis that they were statute-barred by virtue of the one year limitation period provided in s. 69 of the Occupational Health and Safety Act. A similar motion by the City was dismissed and the trial then proceeded against the City of Guelph as the sole defendant.

[3] It is agreed by the parties that the offence charged is one of strict liability which triggers consideration of the defence of due diligence.

Evidence

[4] On June 16, 2009 a fourteen year old student, Isabel Warren, was tragically killed when a concrete block privacy wall in the women's washroom at the South End Community Park owned and operated by the City of Guelph, collapsed on her as she tried to boost herself up onto a change table which was affixed to the wall.

[5] In 2003 the City had engaged the services of ESG International Inc., a landscaping architecture and environmental consulting firm, to be involved on its behalf in the design, tender and contract administration of the park project which included the women's washroom. ESG International Inc. subcontracted the design of the project to Grinham Architect to provide professional services for design, development and construction administration support of this project. Grinham Architect retained Argue Burnside for the structural design of the washroom. The architect on the project was Lloyd Grinham and the structural engineer was Larry Argue.

[6] The City entered into a contract with Gateman-Milloy Inc., a construction and infrastructure development and management company which sub-contracted the project to Harrington Construction Inc. J.D. Masonry Inc. was a masonry contractor hired by Harrington Construction Inc. to perform certain duties on the project including the construction of the wall which collapsed.

[7] The project was substantially completed on June 28, 2004. The washroom was thereafter available for use by the public during all but winter months until the date the wall collapsed in June 2009.

[8] On November 11, 2005 Mr. Argue sent a letter to the firm of the architect Mr. Grinham confirming that the engineering firm had done "several reviews" of the project and that all structural work was "complete" and "satisfactory".

[9] On October 5, 2007 Mr. Grinham sent a letter to the City of Guelph confirming that his firm had "conducted regular site visits" of the project "during the construction period, in order to ascertain compliance with construction documents as prepared by this office". Mr. Grinham went on in the letter to advise the City of Guelph that his firm was of the opinion that the work had been done in general compliance with the construction documents submitted by the City for the purpose of obtaining the building permit for the project and submitted that the buildings were "suitable for the intended use and occupancy".

[10] The building which included the women's washroom, was periodically cleaned and serviced by cleaning staff employed by the City of Guelph and was, at the material time, a workplace within the meaning of the Occupational Health and Safety Act. At the time of the incident, no City workers were engaged in any workplace activity in the washroom where the fatal accident occurred.

[11] There was considerable evidence at this trial with respect to the cause of the wall collapse. I heard from a Ministry of Labour inspector and three professional engineers, all of whom agreed that the wall was improperly constructed. The privacy wall which collapsed extended slightly less than six feet from the exterior wall into the washroom, blocking the view of the interior of the room from one standing at the entranceway. The wall was just over six and a half feet high and did not reach the ceiling. A fixed change table was bolted to the wall through brackets. One end of the wall abutted the exterior wall, but the other end which extended into the room was not affixed to anything. The wall was constructed of cement blocks. It was apparent following the collapse that the wall had not been anchored or tied into the exterior wall, nor to the floor of the change room. There was a bead of mortar where the wall joined the floor and where it abutted the exterior wall. One side of the fixed change table also abutted the exterior wall and there was a bead of mortar at that junction as well.

[12] The evidence was that it was impossible, once the wall had been constructed, to detect whether it had been properly tied or anchored to the abutting wall or to the floor. That determination could only be made once the wall collapsed, exposing these areas to view.

[13] Inside the washroom, a sign was posted providing a contact telephone number for any complaints concerning the premises. There had never been a complaint with respect to the construction of the washroom from the date of its completion until the date of the wall collapse. There had been no intervening cause for the collapse. No damage had occurred in the washroom which might have affected the integrity of the privacy wall. It is clear that the wall collapsed because it could not withstand the force applied to it when Isabel Warren attempted to boost herself onto the change table.

[14] A similar privacy wall had been constructed in the men's washroom as part of the project in 2004. Following this tragedy, a Ministry of Labour investigator and an engineer hired by the Ministry attended the men's washroom to inspect that privacy wall. It was determined that simply leaning into the wall and applying weight with one's shoulder was sufficient to cause the wall to bend. The privacy wall in the men's washroom was constructed in an identical manner to the wall that collapsed, but for a minor difference relating to the change table.

[15] Considerable attention at the trial was focused on the design and construction of the privacy wall which collapsed. Exhibit 1, Tab 4 is the relevant architectural drawing which details, inter alia, the women's washroom of the project. The privacy wall is identified as W6 on the drawing. The interior side of the exterior block wall of the building is delineated by a solid dark line on the drawing. This line does not cross the point where the privacy wall abuts the exterior wall. Rather, the solid line continues around three sides of the perimeter of the privacy wall so that the privacy wall appears to be part of the exterior wall. The drawing details a stainless steel change table on the inside of the privacy wall. A note on the drawing indicates that W6 is a "typical interior 140 block wall – 140 conc. block running bond". All experts agreed that there was nothing on drawing A3 which detailed any anchors, tie-ins, or other mechanical support for the privacy wall. Drawing A3 is stamped with the professional seals and signatures of L.W. Argue, Registered Professional Engineer, and Lloyd A. Grinham, Ontario Association of Architects. This drawing is also stamped by the City of Guelph Building Division and indicates that the plan was examined by Jeremy Laur on September 25, 2003.

[16] The specifications for this project are voluminous and have been filed as Exhibit 10 on this trial. At the bottom of each page of the specifications there is an indication that they were prepared by ESG International and L. Alan Grinham Architect Inc. A section of the specifications from page 4-224 to 4-226 is entitled "Masonry Reinforcing and Tying". Under the title "Reinforced Masonry" paragraph 3.3.1 of this section of the specifications provides as follows:

.1 Reinforce masonry walls as indicated on the Structural Drawings.

Elsewhere in this section instruction is given that tying, grouting, lateral supports and anchorage shall be done in accordance with the appropriate standards of the Canadian Standards Association.

[17] There were two applicable standards published by the Canadian Standards Association pertinent to the privacy wall which collapsed. S304.1-94, entitled "Masonry Design for Buildings (Limit States Design)" set out applicable standards for masonry design. Standard A371-94, entitled "Masonry Construction for Buildings" provided the standard for construction.

[18] S304.1-94, the Design Standard, speaks directly to the issue of structural drawings and provides in paragraph 3.3 as follows:

"In addition to the information required by the National Building Code of Canada, the drawings and related documents for structures designed in accordance with this Standard shall include, where appropriate, the

(a) material to be used in masonry;

(b) details and location of movement joints;

(c) specified compressive strength of masonry

(d) specified flexural tensile strength of masonry;

(e) specified compressive strength of masonry units;

(f) specified strength or grade of reinforcement;

(g) specified mortar type;

(h) specified grout type, slumps, proportions or compressive strength;

(i) position, location, type, spacing and size of ties, anchors, lifting devices, and other supports;

(j) classification of corrosion protection of metal components including those in prefabricated masonry;

(k) governing set of forces required for the preparation of shop or detailed drawings; alternatively, such information may be provided by supplementary material to the drawings and specifications;

(l) size and spacing of reinforcement;

(m) types of mortar joints;

(n) dimensions of masonry;

(o) details of bonding, tying, and anchorage of masonry; and

(p) details and location of chases and recesses."

[19] The standard goes on to set out in great detail the minimum requirements for reinforced walls.

[20] A371-94, the Construction Standard, details how anchors or clips are to be installed when required for lateral support at the side of the wall. The manner of installation of anchors and ties is also specified.

[21] In this case, I heard evidence from four professional engineers. Roger Jeffreys is employed by the Ministry of Labour as the Provincial Engineer. He is also an inspector and assisted Ministry Inspector Price Teeter, a non-engineer, in the investigation of this wall collapse. Mr. Jeffreys provided a report that has been marked as Exhibit 11 on the trial.

[22] Dr. Robert G. Drysdale, Ph.D., P.Eng., is Professor Emeritus with the Department of Civil Engineering at McMaster University. He was retained by the Ministry of Labour to provide an opinion in this case and attended at the scene of the wall collapse with Mr. Jeffreys three days after the incident. Dr. Drysdale's expertise is in the field of masonry construction. He is the author of a major text in masonry design that is used to teach engineers throughout North America. He has a most impressive resume which includes chairing the Canadian Standards Association Committee which prepared A371-Masonry Construction for Buildings. He was a member of the S304 Masonry Design Committee of the Canadian Standards Association and has chaired that committee since 2005. He has been qualified as an expert in masonry construction in several previous cases, was qualified by the court in this case as an expert in masonry construction and was permitted to provide opinion evidence.

[23] Mr. E.H. Chapman, Professional Engineer, undertook a structural review of the buildings that formed the part of this park project following the wall collapse at the request of the City of Guelph. He testified for the prosecution and was not tendered as an expert to give opinion evidence.

[24] Mr. J. Wilkinson, professional engineer, was called by the defence. He conducted a thorough review of the wall collapse and commented on the reports of Mr. Jeffreys and Dr. Drysdale. Mr. Wilkinson was employed by the Ministry of Labour from 1978 until 2007 when he retired and began a consulting engineering firm. He was a regional engineer with the Ministry from 1978 to 1988 providing engineering support for Ministry field construction inspectors. He also assisted in the investigation of construction accidents. Later, while occupying a managerial role, he gave advice particularly concerning construction safety matters primarily involving structural engineering issues to inspectors and to the Ministry of Labour generally. He was the person who developed the training curriculum for inspectors and as such was intimately familiar with the provisions of the Occupational Health and Safety Act and regulations for construction. From 1988 to 1992 Mr. Wilkinson was the Chief Engineer of the Ministry's Construction Health and Safety Branch. His duties involved providing advice to the Ministry's engineering staff, providing strategical direction to the investigators and also conducting investigations himself in major cases. During this time he also was responsible for the development of the Construction Regulations. These came into force in 1991 as regulation 213/91 and in the two years preceding the regulations coming into force Mr. Jeffreys was involved in consultation with the construction industry and the engineering community with respect to the technical requirements of the regulations, specifically these regulations that deal with stability and bracing as it relates to masonry construction. From 1991 to 1997 Mr. Jeffreys held the position of Provincial Coordinator and Provincial Engineer of the Ministry of Labour. In this role he had direct managerial authority over field operations. His position involved interpretation of the regulations under the Occupational Health and Safety Act pertaining to engineering matters. From 1997 to 2007 he was a construction engineering consultant with the Ministry of Labour and had province-wide responsibility and led some of the more high profile investigations. He also provided advice to senior Ministry officials concerning engineering matters. Throughout his career he prepared reports and gave expert evidence on a number of occasions. He was involved in investigating hundreds of workplace accidents. In some cases he testified himself and in others he reviewed the reports of other Ministry of Labour engineers who would be testifying at trials. On a number of occasions he was tendered as an expert witness by the Ministry of Labour on prosecutions. Since his retirement he has been called by the Ministry of Labour on six occasions to testify on behalf of the prosecution. He has designed masonry structures and has been involved in many masonry wall collapse cases. In the circumstances of this case, he was qualified as an expert in the area of design and construction methodologies and the regulatory requirements concerning masonry construction.

[25] There was no disagreement among the engineers that the privacy wall which collapsed in the women's washroom of this project was improperly constructed. Dr. Drysdale and Mr. Wilkinson were in agreement that it was constructed as essentially a free-standing wall because it was not tied in any fashion to the exterior wall or to the floor. Dr. Drysdale and Mr. Wilkinson were in agreement that there was no bond between the mortar on the bottom block layer of the privacy wall and the floor. It was clear that when the wall toppled the mortar adhered to the blocks. Mr. Wilkinson was clear in his testimony that from a design standpoint the bond at the base of the wall should be ignored in terms of its ability to withstand stress.

[26] It was agreed among the engineers that because this wall held a change table, that it was a "load bearing wall".

[27] There was disagreement among the engineers with respect to the sufficiency of the drawings and the specifications related to this project.

[28] Dr. Drysdale, whose report was essentially adopted by Mr. Jeffreys, was critical of the drawings in that they showed no reinforcement of the privacy wall and no specified method of attachment to the floor or to the exterior wall. He testified that there was not sufficient information on the drawing to explain how the wall was intended to be built. There is nothing to indicate whether the wall was to be attached to floor or to the exterior wall. Dr. Drysdale indicated that in the event that the information required was not contained in the drawings then one would expect to find such information in the specifications. Indeed, a constructor is to have reference to both the drawings and the specifications and in the event of a discrepancy, the specifications are to govern.

[29] Dr. Drysdale found the specifications lacking. He testified that the specifications provided no information as to how this privacy wall was to be supported and no reinforcement was called for. The specifications provided no indication to the masons as to how the wall was to be built and secured. Dr. Drysdale acknowledged that the specifications stipulated that masonry reinforcing and tying was to be done in accordance with the Canadian Standards Association standards for masonry design, for connectors for masonry and for masonry construction for buildings. It was the position of Dr. Drysdale that the CSA standards set out alternative methods for supporting a masonry wall. While the provisions in the standards are specific as to anchoring requirements, the choice of the type of anchorage, if any, is a design decision. Dr. Drysdale's point was that there were different methods available to adequately support this wall and that the designing engineer has the responsibility for selecting the appropriate method and for detailing his requirements on the drawings. According to Dr. Drysdale, it does not matter that the specifications provide for compliance with CSA standards if the masonry contractor is not directed as to the specific method of securing the wall. Dr. Drysdale testified that the wall was essentially built exactly as it was detailed on the drawing in the sense that no interlocking of masonry elements, no tying, no anchorage and no bracing were set out in the drawings. Dr. Drysdale, while acknowledging that he had no familiarity with the Occupational Health and Safety Act or its regulations, was of the view that a masonry contractor faced with such circumstances could, but was not required to, bring this omission to the attention of the designer. Dr. Drysdale said that the contractor is not free to develop his own solution in such circumstances without prior approval by the designer.

[30] Mr. Chapman in the course of conducting his visual audit and structural analysis to determine the condition of the buildings in this project after the collapse reviewed both the drawings and the relevant specifications. He testified that "indirectly" the specifications refer to the ties that were not there in the wall by reference to the CSA standards. He said that the standards referred to in the specifications are readily available to masonry contractors. In the event that the wall had been constructed in accordance with the specifications, then tie-ins should have been used. He testified that reasonably competent masonry contractors would not have to be told to put the ties in a wall of this sort because they have a sound knowledge of the building code, standards and practices in the industry. Mr. Chapman's position was that the specifications were not followed by the masonry contactor. He testified that one would expect that the masonry contractor would know how to tie in this privacy wall properly and that it was not common in the industry that such details be provided on drawings. In response to a question by Mr. McCaskill, he indicated rather grudgingly that this was a load bearing wall because of the change table being attached and that the method of support should be drawn by the structural engineer for load bearing walls. Still, it was his position that any reasonable masonry contractor should have known from the drawings in this project that tie-ins were required.

[31] Mr. Wilkinson indicated that a wall such as the privacy wall which collapsed would, in accordance with the usual practice, be connected to the exterior wall by interlocking masonry units or by use of mechanical ties. He testified that if this were designed to be a free-standing wall that would have been indicated by a space on the drawing between the exterior wall and the privacy wall. The fact that they are shown as one unit on the drawing leads to the conclusion that the walls were to be connected, he said.

[32] Through Mr. Wilkinson, the defence introduced Exhibit 35 which is an excerpt from "Textbook of Canadian Masonry" which is published by the Canadian Masonry Contractors' Association and is used by the Canadian Masonry Centre for teaching masonry apprentices. While this book was published in 2010, it pooled together longstanding concepts taught to masonry apprentices for several years, and therefore is applicable to the circumstances of this case.

[33] The excerpt refers to ties and anchors of various sorts and provides clear instruction and drawings with respect to their use. The excerpt makes reference to the necessity to meet requirements of CSA, A370-04 which relates to "connectors for masonry" and to A371, the construction standards. The point being made by Mr. Wilkinson was that the importance of connecting intersecting walls with anchors or ties is well known to masonry contractors and is taught as part of the basic apprenticeship training for masons.

[34] Mr. Wilkinson testified that the specifications in this case were adequate. He pointed out that the section of the specifications dealing with masonry reinforcing and tying made it clear that the contractor was to do masonry reinforcing and tying in accordance with the CSA standards "unless specified otherwise". Paragraph 3.4.1 of the specifications stipulates, "Embed bolts and anchors solidly in mortar or grout to develop maximum resistance".

[35] Paragraph 3.3.6 provides that lateral support and anchorage is to be installed in accordance with the standards and as indicated on the structural drawings. Mr. Wilkinson took issue with the opinion of Dr. Drysdale that the specifications gave only general direction, but did not constitute a specification for providing anchorage. Mr. Wilkinson said that, because the specifications make reference to CSA standards masonry contractors would regularly follow in the course of their work, it was sufficient to give warning to the contractor that the wall was to be constructed in this way.

[36] While Mr. Wilkinson did not feel there was a problem created by the combination of the drawings and the specifications, he did point out that Dr. Drysdale was incorrect that there was no mandatory obligation on a masonry contractor to report such defects. He correctly illustrated that s. 28(1)(c) and (d) imposed a duty on a worker to do so. He also pointed to the notes on drawing A3 indicating prominently that, "Any ambiguity in the drawings, specifications, or details is to be reported to the landscape architect for direction. Do not proceed in uncertainty." There is no evidence in this trial that the masonry contractor brought any concerns to the general contractor, the architect or the structural engineer and nothing to indicate that he ceased work over some issue of concern dealing with the drawings or specifications.

[37] Mr. Wilkinson did not agree with Dr. Drysdale that this was a design problem rather than a construction problem. While conceding that the drawings could have had more detail, he was clear that a reasonable masonry contractor should have the knowledge and experience to understand that ties were required with reference to the drawings and specifications.

[38] Mr. Wilkinson testified that if the ties had been installed in accordance with the specifications that this wall would not have collapsed in the circumstances in which it did and, in fact, would have been able to have withstood a significantly greater load than was applied. It was his opinion that if the designer had a specific requirement for ties in relation to their location and type then that would be detailed on the drawing. However, if the designer had no such specific requirement then the default position in the industry is that the CSA standards apply. Had there been no requirement for ties then that should have been clearly noted on the drawing. In the absence of such a note then it should have been clear to the masonry contractor that ties should have been installed in conformance with the CSA standards. He said that it was obvious from the drawing that the privacy wall was to be tied to the exterior wall. He testified that there was nothing unusual about the drawings in this case and that they showed typical walls that are to be tied together as per typical masonry construction.

[39] In cross-examination Mr. Wilkinson was referred to CSA 304.1-94, the Masonry Design Standard, filed as Exhibit 15. It was put to him that paragraph 3.3(i) provided that the position, location, type, spacing and size of ties, anchors, lifting devices and other supports were to be detailed in the structural drawing. Mr. Wilkinson pointed out that the requirement was that "the drawings and related documents for structures designed in accordance with this Standard, shall include, where appropriate ... (i) position, location, type, spacing and size of ties, anchors, lifting devices, and other supports." Mr. Wilkinson indicated that if the method of support was accomplished by other means, then this information was not required on the drawings or in the specifications. It was his view that the drawing clearly indicated that the privacy wall was to be connected to the interior wall. His professional engineering opinion was that the default position, when there is no other detail provided, is that the walls are to be connected through interlocking blocks. He was satisfied that even though the exterior wall and the privacy wall were built on different foundations that connecting them through interlocking blocks would have provided a safe structure. Moreover, he testified that further detail would not normally be on the drawings because standard construction would be assumed.

[40] Mr. Wilkinson testified that he would have designed a "moving joint" where the privacy wall intersection with the exterior wall and that supporting the privacy wall by interlocking with the exterior wall was not ideal. Nonetheless, he was clear that the design in this case was not deficient in that safety would not be compromised if they were connected by interlocking blocks.

[41] With the reference to Canadian Standards Association S304.1-94, Masonry Design for Buildings (Limit States Design), and in particular s. 3.3 concerning drawings and related documents, Mr. Wilkinson testified that virtually all of the provisions in that section dealing with mortar type and strength are commonly detailed in the specifications rather than in the drawings. He said that this was "quite standard practice". He also said that it was "absolutely" the case that this was well known to masonry contractors. He agreed with the other engineers that contractors and masonry sub-contractors must have reference to both the drawings and the specifications and that this was standard construction practice in the industry.

[42] Mr. Wilkinson testified that if the exterior wall and the privacy wall were built at different times so that the interlocking block method of support was impractical that the masonry contractor was required to seek clarification or to install ties after the fact, but that in any event it was crystal clear from the drawings that the two walls had to be connected. He again referenced the Canadian textbook on masonry that set out clearly information concerning ties including type, size, and location of spacing. He was firm in his opinion that a reasonable masonry contractor does not need to be told the specifics about supporting such a small wall as the privacy wall in this case and that this is something they certainly should know from their experience and training.

[43] During the trial there was considerable evidence with respect to the design philosophy of "allowable unit stresses" and "limits states design". Dr. Drysdale and Mr. Wilkinson were in agreement concerning this part of the evidence.

[44] "Allowable unit stress" was described as a term used in older building codes in the "working stress" concept of design. Under that philosophy the actual strength of material was factored down to create an allowable or working stress value. This design philosophy has not been taught to engineers at the university level for many years. It was replaced by the concept of "limits states design". The change allowed a more uniform level of safety to be achieved than had existed under the "working stress" philosophy and allowed a better statistical assessment of failure.

[45] The National Building Code was changed to reflect this new design concept in 1995. Ontario followed in 1997 and the Ontario Building Code, the regulations under the Ontario Building Code Act, adopted the National Building Code and all applicable standards in 1997. The CSA standard for masonry design was changed in 1994 and the applicable standard at the time of the design and construction of the project in this case was CSA standard S304.1-94 "Masonry Design for Buildings (Limits States Design)". It was clear from the evidence in this case that this project, and in particular the women's washroom, was designed using the limits states approach and not the allowable unit stress concept.

[46] In addition to Mr. Wilkinson, the City of Guelph called evidence with respect to the duty which it owed, in its position as employer, to workers under the Occupational Health and Safety Act.

[47] Bruce Poole, Chief Building Official for the City of Guelph testified. He has responsibility for administration and enforcement of the Ontario Building Code. He obtained an architectural technology diploma from Fanshawe College in 1980 and then worked as an architectural technologist with various offices until 1984 when he was employed by the City of Guelph. From 1984 to 1987 he was an inside building inspector with the City. Thereafter he was promoted to field building inspector and in 1994 he became the senior building inspector for Guelph. He assumed his current duties as Chief Building Official in 1995. He has been heavily involved in ongoing education and has completed a number of courses offered by the Ontario Ministry of Municipal Affairs and Housing concerning building code requirements and legal process and responsibilities. The Ontario Building Officials' Association certified him in 1991 as a Certified Building Code Official after he had successfully completed the educational requirements. In 2004 there was an amendment to the Building Code effective July 1, 2005 that required Chief Building Officials to be qualified and appointed under the provisions of the Building Code Act. Mr. Poole completed all of the necessary requirements to be so designated. He testified that Jeremy Laur and Mark Shody have successfully completed all requirements to be qualified as building inspectors pursuant to the provisions of the Building Code of Ontario.

[48] The provincial government has delegated the responsibility of looking at building plans and issuing building permits to municipalities and it is a statutory requirement that each municipality have a Chief Building Officer.

[49] Mr. Poole is neither an architect nor an engineer and there is no statutory requirement in Ontario that he hold either designation in order to fulfil his duties as Chief Building Official for a municipality. Likewise, there is no such requirement for municipal building inspectors.

[50] At the relevant time the City of Guelph building service employed about 30 people and had no architect or engineer. It was the evidence of Mr. Poole that this was not at all unusual, but in fact rather typical for municipalities of similar size in Ontario. There is no legislative requirement in the province that there be a professional engineer or architect in any position on the staff of a municipal building service.

[51] Mr. Poole made it clear that City building projects are treated the same as any other project in the City of Guelph. There are approximately 2,300 building projects in Guelph every year and perhaps 20 to 25 of those are projects originated by the City. All City projects are subject to the relevant City of Guelph by-law and the Building Code Act and must receive a building permit from the City.

[52] The Building Code provides that a project of the sort undertaken in this case requires the involvement of both an architect and a professional engineer. The approval of both the architect and the engineer, as signified by their stamps on the drawings, were required before a building permit could be issued. Mr. Poole testified that the City of Guelph would not have issued a building permit in this case without the stamps of Mr. Grinham and Mr. Argue.

[53] It was the testimony of Mr. Poole that when drawings stamped by engineers and architects are received, that the City will review the plans but does not inquire of the respective professional associations whether or not the architect or engineer are licensed. There is no statutory requirement to do so. Likewise no inquiry is made as to whether the architect or engineer is subject to professional disciplinary proceedings. Again there is no statutory requirement for the City to do so. This is the fashion in which municipalities across the Province commonly deal with drawings stamped by engineers and architects and there has never been a direction from any Ministry of Labour inspector or engineer that the City of Guelph or any other municipality is to make such inquiries of the governing bodies of architects or engineers.

[54] The City building service examines the drawings, but its personnel are not qualified to countermand an architect or engineer. The plans are reviewed to ensure that no drawings are missing, that engineering drawings match up with architectural drawings and that reports will be submitted as the construction process progresses. The Chief Building Official must be notified of the progress of construction in order that all appropriate inspections can be carried out. Mr. Poole testified that proper inspections were carried out in this case exactly as with the other 2,300 or so building projects being undertaken in the City of Guelph at the relevant time.

[55] The drawings in this case were stamped by Jeremy Laur. There is no requirement under the terms of the Building Code Act or the Building Code for Mr. Laur to have spoken with the architect or engineer before affixing his stamp. The plans examiner relies on the stamps of both professionals and this is the practice for all construction projects in the City of Guelph and is common for municipalities throughout the Province. It has never been brought to the attention of the City of Guelph by the Ministry of Labour that this practice is somehow insufficient.

[56] Brenda Campbell, a registered nurse, testified in her capacity as Health and Safety Specialist for the City of Guelph. She implements and updates the City of Guelph health and safety program. She indicated that all City employees, both full time and part time, get the appropriate orientation. Considerable time is spent in making sure that all employees are aware of their rights and responsibilities under the Occupational Health and Safety Act. Employees are directed to notify superiors of any dangerous situation that arises in the workplace and are instructed that it is their responsibility to bring any issues that ought to be addressed in the workplace to the attention of superiors. There are 23 members of the Health and Safety Committee. The City conducts regular workplace inspections to ensure safety and they are undertaken by supervisors and members of the committee. The City instructs that these inspections be carried out more frequently than is required by law. It was Ms. Campbell's testimony that prior to the collapse of the privacy wall in the women's washroom in June 2009, there was never any concern expressed about the safety of that workplace.

[57] The investigation into the wall collapse in this case was conducted on two fronts. While the Ministry of Labour pursued its investigation concerning possible breaches of the Occupational Health and Safety Act, the City of Guelph Police Service also investigated for criminal responsibility. Ultimately no criminal charges were laid. At times the investigations overlapped. At one point Cst. Scott Wright of the Guelph Police Service and Ministry Engineer Roger Jeffreys were involved together in an interview of Mark Shody, the City of Guelph building inspector who had visited the site several times during the construction phase. The City was not a target of the investigation at the time. There was no contemplation that the City would be charged with any offence. At the request of Mr. Shody he was permitted to have present Mr. Robert Reynen, Manager – Inspection Services, of the City of Guelph. Mr. Reynan took no part in the interview itself. Towards the end of the interview, during a time of general discussion, Mr. Reynan said something about Mr. Argue, the engineer on this project, having been involved in an earlier project known as Silvercreek at which a wall had collapsed. Mr. Jeffreys sought additional information concerning this utterance from Cst. Wright and then followed up with some further investigation. The City of Guelph provided Cst. Wright with some documents that it had in its possession pertaining to the Silvercreek incident and these were passed on to the Ministry of Labour. Following a voir dire, I determined that the utterance by Mr. Reynan and the relevant documents provided by the City thereafter were admissible. The documents have been marked as Exhibits 22 and 23 on the trial.

Positions of the Parties

[58] Counsel are in agreement that the offence charged is one of strict liability and as such the Crown must prove the actus reus beyond a reasonable doubt, but the defence can then avoid conviction by establishing due diligence on a balance of probabilities. Mr. McCaskill, on behalf of the Ministry of Labour, recognizes that the City of Guelph had no direct involvement in the design or construction of this project. It is acknowledged that the City contracted with ESG International for all design, tendering and construction administration roles. Thereafter the City took no part in the involvement of the architect, structural engineer, contractors or sub-contractors. The Crown does not allege that the City of Guelph bears responsibility for any design or construction fault except as indicated below.

[59] It is the position of the Ministry that the City of Guelph bears responsibility under s. 25(1)(e) of the Occupational Health and Safety Act in terms of its regulatory duties involving the issuance of building permits. The Ministry points out that the City building department had no reference to the specifications at the time of the issuance of the building permit, but relied solely on the drawings. The Ministry alleges that the drawings are patently inadequate in relation to the design of the privacy wall which collapsed and that they provided no direction to the masonry sub-contractor as to how the wall was to be built. The Ministry alleges that the City failed in its role as an employer, as contemplated by the Occupational Health and Safety Act, to ensure that this workplace was safe when it permitted it to be built with a privacy wall that was so obviously not supported. Having failed in this role the City cannot establish that it acted with due diligence.

[60] Further, the Ministry also claims that the City of Guelph cannot establish due diligence because it should have been alerted by the Silvercreek wall collapse that there could be a problem with the competency of Mr. Argue, the structural engineer on both projects, such that further investigation of his work on the women's washroom should have been undertaken by the City.

[61] The defence asserts that based on the specific and rather technical wording of s. 25(1)(e) of the Occupational Health and Safety Act that the actus reus in this case has not been proved beyond a reasonable doubt. Mr. Keith asserts that it is unfair for the Ministry to focus its attack on the City's regulatory function as there is no such duty imposed under the Occupational Health and Safety Act and, therefore, no related charge. It is the defence position, in the alternative, that the City of Guelph has established the due diligence defence on a balance of probabilities on all of the evidence in this case and that the charge cannot, therefore, succeed.

Analysis

Worker Safety and the Scope of Section 25(1)(e)

[62] It is agreed by counsel that the primary purpose of the Occupational Health and Safety Act is worker safety. Of course, Isabel Warren was not a worker within the meaning of the Act nor was any worker present at the time of the wall collapse. The defence has conceded that the location of the collapse was a "workplace" at all material times as contemplated by s. 25(1)(e) of the OHSA. For reasons that shall become apparent below, the Crown has urged that s. 25(1)(e) of the OHSA be stripped of its technical language such that I find that the purpose of the section is to ensure that workers are provided a safe workplace. Without, at this stage, accepting the position urged upon me by Mr. McCaskill I wish to deal briefly with the concept of worker safety in the context of this case.

[63] The issue was important with respect to the preliminary motion by defendants Grinham and Argue that the charges against them were statute barred. Unlike s. 25(1)(e) of the OHSA under which the City of Guelph has been charged, the charges against Grinham and Argue under s. 31(2) of the Act required proof of "... negligent or incompetent advice, which endangered a worker at a workplace ...". On that motion Grinham and Argue submitted that there was no evidence from the agreed statement of facts that a worker was endangered. On this issue I can do no better than to repeat my comments in my ruling on the preliminary motion as follows:

"It is the position of these defendants that there is nothing in this case to demonstrate that a worker was endangered as a result of the alleged negligent advice. Indeed, no worker was present at the time of the collapse of the wall at this workplace. However, the wall did collapse in circumstances in which it would not have been expected to. It would appear from the agreed statement of facts and, from there being no other intervening factor since the construction of the wall that it had been in the condition in which it was just prior to its collapse since its construction. Clearly it was in danger of collapsing throughout this time had it been subjected to the stress that was applied to it on the date of the actual collapse. Throughout that time it represented a danger to members of the public and to workers who were periodically present in the washroom should sufficient stress have been applied to it. The actual load imposed on the wall by the attempt of this young girl to lift herself onto the change table was not great. The wall should certainly have been able to withstand it. Any number of circumstances can be envisaged in which a worker could have applied such stress to this wall at this workplace while engaged in his or her employment. For instance, should the change table have needed cleaning it is likely that it would have been leaned upon by a worker or perhaps had a cleaning bucket or ladder or other bit of heavy equipment set upon it sufficient to exceed the load that the wall could apparently bear. It is entirely reasonable to assume that a worker could have been present when this wall collapsed or at any other time when an act by a member of the public caused the wall to collapse. The wall represented a continuing danger to those who had access to the washroom and that included workers. Workers and the public were vulnerable to the same hazard. It was the wall's potential for failure that established endangerment. As said in R. v. Efco Canada Co. et al., [2010] ONCJ 421 'the endangerment lies in the potential for failure, not in failure of the structure itself. Once a standard of care is established, any departure from it in the context of a structure proximate to workers will engender endangerment.'

"I agree with the submission of the Crown at paragraph 67 of its brief that 'the Crown is not required to establish that a worker would have had to perform the same act as the deceased. Nor is the Crown required to establish that workers were endangered by the insecure structure. A concrete wall that could be so easily toppled, with catastrophic results, is a hazard in waiting. To suggest that such a hazard did not place any worker who came into its vicinity in danger, irrespective of what actions they may be undertaking, is to ignore the reality of the situation. This wall was a danger to anyone near it. This was an unsafe workplace.'"

[64] It is necessary to consider this restatement of my opinion only in the event that I give effect to the Crown position concerning the interpretation of s. 25(1)(e) of the OHSA. Otherwise, the section is clear that its requirements apply to a workplace without any mention of endangering a worker and the concession by the defence that the site of the wall collapse was a workplace should end the discussion.

Actus Reus

[65] Section 25 of the Occupational Health and Safety Act in force at the time of the design and construction of this project and also at the time of the collapse of the privacy wall reads as follows:

Duties of employers

25. (1) An employer shall ensure that,

(a) the equipment, materials and protective devices as prescribed are provided;

(b) the equipment, materials and protective devices provided by the employer are maintained in good condition;

(c) the measures and procedures prescribed are carried out in the workplace;

(d) the equipment, materials and protective devices provided by the employer are used as prescribed; and

(e) the floor, roof, wall, pillar, support or other part of a workplace is capable of supporting all loads to which it may be subjected without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act. R.S.O. 1990, c. O.1, s. 25(1).

[66] It will be noted that s. 25(1)(e) specifically makes reference to allowable unit stresses established under the Building Code Act. However, the working stress model of engineering design which incorporated the term "allowable unit stresses" has had no applicability in this Province since 1997. The Canadian Standards Association introduced S304.1-94, its standards for masonry design based on the limits states concept in 1994. This was adopted by the National Building Code in 1995 and the Ontario Building Code Act and its regulations, the Ontario Building Code, in 1997. At around that time there was a wholesale change in the engineering philosophy applied to construction and throughout Canada the limits states design concept was adopted and has applied since. Indeed, the uncontradicted evidence before me from both Dr. Drysdale and Mr. Wilkinson is that the project in question in this case was designed and constructed under the limits states design engineering model.

[67] It was not until June of 2011 that the Occupational Health and Safety Act was amended to give effect to this conceptual change which had been reflected in the Building Code Act and Building Code some 14 years earlier. The new section currently in force reads as follows:

Duties of employers

25. (1) An employer shall ensure that,

(a) the equipment, materials and protective devices as prescribed are provided;

(b) the equipment, materials and protective devices provided by the employer are maintained in good condition;

(c) the measures and procedures prescribed are carried out in the workplace;

(d) the equipment, materials and protective devices provided by the employer are used as prescribed; and

(e) a building, structure, or any part thereof, or any other part of a workplace, whether temporary or permanent, is capable of supporting any loads that may be applied to it,

(i) as determined by the applicable design requirements established under the version of the Building Code that was in force at the time of its construction,

(ii) in accordance with such other requirements as may be prescribed, or

(iii) in accordance with good engineering practice, if subclauses (i) and (ii) do not apply. R.S.O. 1990, c. O.1, s. 25(1); 2011, c. 11, s. 9.

[68] The informant in this case, Ministry of Labour Inspector Price Teeter, was not aware that the term "allowable unit stress" had been abandoned in the Building Code Act, the Building Code and the Canadian Standards Association standards used previously. He did not know what "allowable unit stresses" were.

[69] It is the position of the defence that the Crown has failed to prove the essential elements of what it has alleged. Mr. Keith has urged that the evidence is clear that the collapse in this case was as a result of a stability issue and that there was no testimony that this was caused by exceeding allowable unit stresses. He pointed out the evidence of Mr. Wilkinson that no allowable unit stresses were exceeded in this case nor were they even applicable to the circumstances of this collapse. Both Dr. Drysdale and Mr. Wilkinson were in agreement that there was no bonding of mortar to the floor in this case. Mr. Keith points out that the Building Code Act, the Building Code and the CSA standards contained no reference to allowable unit stress at the time of the design, construction and collapse of this wall. There were no design parameters related to the construction of this building that considered allowable unit stress. There was no material of which this wall was constructed that had any allowable unit stress put in play at the time of the collapse.

[70] Mr. McCaskill in his able argument acknowledged the difficulty presented by this issue. He characterized the section as containing "unfortunate and arcane" language. He urged me to consider that this is an issue of statutory interpretation and that it was imperative that the court be guided by the purpose of the legislation. He referred to Rizzo & Rizzo Shoes Ltd., [1998] S.C.J. No. 2 and Ontario (Attorney General) v. Big Canoe, [2002] O.J. No. 4596 in suggesting that the court should read the words of the Act in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament in order to adopt an interpretation that is appropriate.

[71] Mr. McCaskill referred to the leading authority concerning interpretation of public welfare statutes, Ontario (Ministry of Labour) v. Hamilton (City), 58 O.R. (3d) 37, [2002] O.J. No. 283 and in particular paragraph 16 wherein Sharpe J.A. stated:

"The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided."

[72] Mr. McCaskill urges the court to find that the purpose of s. 25(1)(e) of the OHSA is to ensure that workers are provided a safe workplace. It is his position that the City failed to do so in that it did not live up to its core function as a municipal regulator to ensure that it provides building permits only for safe construction projects.

[73] Mr. McCaskill urged that there was a "rambling" pathway to the resolution of this interpretation issue. Clearly, one must go through s. 25(1)(e) of the OHSA to the Ontario Building Code Act and to its regulations contained in the Ontario Building Code and from there to the referable Canadian Standards Association standard. Mr. McCaskill acknowledged that the term "allowable unit stress" was not defined in the OHSA, the OBCA, the BCO or CSA standards. However, he pointed out that it is defined in s. 1 of Regulation 213/91 under the OHSA. This section reads as follows:

"1.(1) In this Regulation,

"allowable unit stress", in relation to a material, means,

(a) the allowable unit stress assigned to a material by the standards required under the Building Code, or

(b) if no allowable unit stress is assigned under clause (a), the allowable unit stress for the material as determined by a professional engineer in accordance with good engineering practice;

[74] According to Mr. McCaskill the path then leads to s. 85 of the Legislation Act, S.O. 2006 CHAPTER 21, Schedule F which reads as follows:

"85. If a term is defined, other forms of the same term have corresponding meanings. 2006, c. 21, Sched. F, s. 85."

[75] Mr. McCaskill reasons that the definition in s. 25(1)(e) of the OHSA should be given the same meaning as in the Regulation. He concludes that the term therefore simply means the permissible stress to which a material can be subjected. He submits that this convoluted and circuitous path leads to an interpretation that is consistent with the objects of the OHSA.

[76] The difficulty that I have with this argument is its final step. Even if I agree with the path suggested by Mr. McCaskill, I am left with the problem that in incorporating the definition in Regulation 213/91 to s. 25(1)(e) does not resolve the issue. Section 1(1) clause (a) of the Regulation leads me back to a reference to standards required under the Building Code. The Building Code does not set out allowable unit stress standards. The alternative definition in s. 1(1) clause (b) is of no applicability because the building in question was not designed under an allowable unit stress model, but rather the limits states design philosophy. Moreover, both Dr. Drysdale and Mr. Wilkinson agreed that this was essentially a freestanding wall and that the bead of mortar between the bottom of the wall and the floor had no bonding capability. In preparing some calculations in his report Dr. Drysdale assigned a mathematical factor of .1 to the mortar bead at the base of the wall. Mr. Wilkinson indicated that in the circumstances of this case that was not applicable. The issue was not thoroughly probed by either counsel during questioning and I am, therefore, left in a reasonable doubt as to whether or not that is an appropriate figure to consider and whether it has any applicability to "allowable unit stress" in the circumstances of this case.

[77] Mr. McCaskill in his submissions expressed some relief at the fact that s. 25(1)(e) of the OHSA had finally been amended in 2011 in order to provide for less cumbersome wording. He implied that the current wording has simply been cleaned up so as to make the section easier to understand. With respect, I disagree. If the analysis by Mr. McCaskill is correct, then there would have been no need to amend s. 25(1)(e). It is an inappropriate exercise, in my view, to disregard the technical wording in the section and to draw the conclusion that it is meant to simply suggest that walls in a workplace must be maintained in a safe condition by an employer. Indeed, s. 25(2)(h) of the OHSA imposes a duty on an employer to take every precaution reasonable for the health and safety of a worker. It seems to me that the circumstances of this case could well have given rise to a charge under that section of the OHSA. However, the Ministry opted to lay the charge under s. 25(1)(e) and it is bound, therefore, to prove the essential elements of that charge beyond a reasonable doubt.

[78] While I accept Mr. McCaskill's suggestion that the wording seems unfortunate and unwieldy, the fact is that when it was enacted, it made perfect sense. The allowable unit stress concept was in vogue in Canadian engineering circles. It was taught to engineering students, it was referenced in the Ontario Building Code Act, the Ontario Building Code and the CSA standards. No mental gymnastics were required in order to divine its meaning. The problem facing the Crown in this case is not the matter of statutory interpretation, but rather the fact that the charging section incorporates by reference a standard that did not exist at the time of the design and construction of this building. The extraordinarily lengthy lag by the Ministry in bringing this section into conformity with modern theories of structural design is the problem. The wording in the charging section has no applicability to the circumstances of this case in that the concept of allowable unit stress had expired long before the design and construction and that this project was clearly designed in accordance with the limits states design discipline.

[79] Mr. McCaskill has referred the court to Ontario (Ministry of Labour) v. Nor Eng Construction & Engineering Inc., [2008] O.J. No. 2475 and suggests that the fact of the wall collapse in this case can constitute prima facie proof that allowable unit stresses had been exceeded. I have carefully read that decision and it appears clear that the argument made in this case was not advanced in Nor Eng. The case is distinguishable on that basis in my respectful view.

[80] I have concluded that the Crown has not proved the actus reus beyond a reasonable doubt and that the charge must be dismissed on that basis. In the event that I am incorrect in that assessment, I should, nonetheless, deal with the issue of due diligence in order that a reviewing court can have the benefit of my full reasons.

Due Diligence

[81] Assuming that the actus reus has been proved beyond a reasonable doubt, it follows that the defendant must be convicted unless it can establish on a balance of probabilities that it exercised due diligence to avoid the commission of the offence. In R. v. Sault Ste. Marie (City), [1978] S.C.J. No. 59, Dickson J., in speaking for the court, said at page 1326:

"... the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if proved, would render the act or admission innocent, or if he took all reasonable steps to avoid the particular event."

[82] There is ample evidence in this case that the City of Guelph has insulated itself from liability by contracting out this project from the outset. It acted reasonably in so doing and it took no direct part in either the design or the construction of the project. The City reasonably relied on ESG International to look after the design, tendering, and construction administration of the project. The City reasonably relied on the Certificate of Substantial Performance provided by Stantec in June of 2004 and filed on the trial at Tab 24 of Exhibit 1. Stantec, a large national engineering firm had purchased ESG International. Likewise the City reasonably relied on a letter dated November 11, 2005 from Larry Argue, P. Eng., confirming that the structural work was complete and was satisfactory and a letter from Lloyd A. Grinham, Architect, dated October 5, 2007 confirming that the work on the project was completed and in general compliance with construction documents. Mr. Grinham advised, "We would respectfully submit that these buildings are therefore suitable for the intended use and occupancy." These letters were filed as Exhibit 1, Tabs 25 and 26 respectively.

[83] As discussed above, the Crown essentially concedes the position adopted by the City in this regard. However, the focus of the Crown is with respect to the duty of the City concerning the issuance of a building permit. On this issue the Crown takes a two-pronged approach:

1. The City of Guelph was negligent in issuing a building permit when the structural integrity of the privacy wall shown in drawing A3 was deficient or at least ambiguous.

2. The knowledge by the City of Guelph that the structural engineer Larry Argue had been involved in an earlier project on which there had been a wall collapse should have alerted the City to a potential problem requiring more scrutiny before the building permit could issue.

Should the City of Guelph Have Refused to Issue a Building Permit on the Basis of Defective Drawings?

[84] As mentioned, Mr. Keith on behalf of the City of Guelph, has taken the position that the Ministry ought to be precluded from this approach since the Occupational Health and Safety Act contains no charge for a city failing in its regulatory responsibilities and imposes no duty on the City in that regard. With respect, I am not persuaded by Mr. Keith's submission. I accept the submission of the Ministry that the City is in a rather unique position as a defendant in this case as supported by Dickson J. in Sault Ste. Marie where he said on page 1330:

"It must be recognized, however, that a municipality is in a somewhat different position by virtue of the legislative power which it possesses and which others lack. This is important in the assessment of whether the defendant was in a position to control the activity which it undertook and which caused the pollution. A municipality cannot slough off responsibility by contracting out the work. It is in a position to control those whom it hires to carry out garbage disposal operations, and to supervise the activity, either through the provisions of the contract or by municipal by-laws. It fails to do so at its peril."

I conclude that if the actus reus has been proved in this case, that the City cannot avoid conviction if it did, indeed, act unreasonably in issuing a building permit.

[85] The discussion of this issue requires a determination of whether the drawings were deficient or ambiguous. There is overwhelming evidence in this case that the privacy wall was improperly constructed. If the fault lies solely with the masonry sub-contractor, the City has no responsibility. The only involvement that the City had in the construction of this wall involved the regular building site inspections carried out by the City. There is no suggestion by the Crown that these inspections were negligently performed or that the City could have reasonably known that the wall was unsafe once it had been erected. On the other hand, if the wall was improperly designed from the outset, then the issue becomes whether this is something that the City should have detected in its plans examination process or whether the City could reasonably rely on the stamps of professional engineers and architects on the drawings to ensure the safety of the project.

[86] It is clear to me on the evidence in this case that there was an outright failure on the part of the masonry sub-contractor to properly construct the privacy wall. Mr. Jeffreys, Mr. Chapman and Mr. Wilkinson were all in agreement that if the specifications to this project had been followed that the wall would have been properly constructed and the collapse would not have occurred. I am satisfied that any reasonable masonry contractor should have known that the wall, as constructed, was unstable. Through training and experience it should have been obvious to the masons that this wall had to be connected to the exterior wall or supported in some other fashion. It is no answer for the masonry sub-contractor to say that the wall was built as indicated on the drawings. It should have been obvious that the manner in which it was constructed was unsafe and, if the masonry sub-contractor had questions then they should have been directed to the engineer or architect.

[87] There is, of course, a difference of opinion between Dr. Drysdale and Mr. Wilkinson with respect to the sufficiency of the drawings and the specifications. Dr. Drysdale takes a purist academic approach and Mr. Wilkinson speaks from his considerable experience and knowledge of common practices in the industry. In a perfect world ties or anchors ought to have been detailed in the drawing. I accept Dr. Drysdale's position in that regard particularly in light of the requirement set out in CSA S304.1-94, s.3.3(i) requiring that the position, location, type, spacing and size of ties, anchors, lifting devices and other supports should be included in the drawings. However, it would appear from the evidence of Mr. Wilkinson and Mr. Chapman that this practice is not common in the industry. Indeed, both testified that the specifications were adequate to set out the requirements of tying or anchoring and that it was common in the industry that there be no such detailing on the architectural drawings. Both agreed that any reasonable masonry sub-contractor would understand what was required and would build the wall safely. Mr. Chapman conceded, somewhat grudgingly I thought, that if it were a load bearing wall that the drawings should be more detailed. This was a load bearing wall. It should be noted that CSA S304.1-94, s. 3.3(i) draws no distinction between load bearing and non-load bearing walls. I conclude that notwithstanding the common practice in the industry that if ties or anchors were required by the engineer that they should have been detailed in the drawings. If the practice common in the trade was followed in this case it would appear obvious that it was unsafe and resulted in a tragedy. Of course, having had the charges against them dismissed by my earlier ruling, neither Mr. Argue nor Mr. Grinham took part in this trial. It is, therefore, impossible for me to know exactly what was intended by either. I have not had the benefit of their evidence nor cross-examination of the engineers by counsel on their behalf. I am loathe, therefore, to make a finding of responsibility for this wall collapse against either. However, it is clear to me that if it was the intention of the architect or engineer that mechanical ties or anchors be used to support this privacy wall that the drawings ought to have reflected this.

[88] The issue is whether or not the City acted reasonably in its process of plans approval leading to the issuance of a building permit. The evidence in that regard satisfies me that the City of Guelph acted reasonably, in accordance with provincial legislation and in a manner consistent with the practice of other municipalities in Ontario in setting up and staffing its building service. It appropriately regarded the application for a building permit in this case no differently from the manner in which it approached every other application that came before it.

[89] The Ministry has pointed to the City of Guelph By-law Number (2005)-17771 which was filed as Exhibit 31 on the trial and in particular s. 5.3 of the by-law which reads as follows:

"5.3 Plans and Specifications

Sufficient information shall be submitted with each application for a Permit to enable the Chief Building Official to determine whether or not the proposed Construction, Demolition or change of use will conform with the Act, the Building Code and any other applicable law."

[90] The position of the City is that it acted reasonably and in the same fashion as all municipalities across Ontario in accepting the professional stamps of an architect and a professional engineer as evidencing compliance with all legal requirements. It is my view that it is reasonable for a municipality to do so. The standard is not perfection, but reasonableness. Moreover, it is not readily apparent from the drawing A3 that it is deficient in any way. If it was the intention of the engineer to have the privacy wall connected to the exterior wall by anchors or ties, then I have found that those should have been detailed on the drawing. However, I accept the evidence of Mr. Wilkinson that the default position in the industry is that if walls are joined as shown on drawing A3 that they are to be interlocked. If this is the case, then there is no need to detail anchors and ties since that is not the intended method of supporting the wall. I understood the evidence of Mr. Wilkinson that interconnecting may not be ideal in the circumstances of this case, but that it would produce a safe connection between the privacy wall and the exterior wall. I accept this evidence. From the perspective of a plans examiner it is clear from drawing A3 that the privacy wall is to be connected to the exterior wall. Having accepted the evidence that the default position is an interlocking of blocks then it seems reasonable to me that a plans examiner, seeing that there is to be a connection between the walls and bearing in mind that the plan has been stamped by a professional engineer, could reasonably rely on the requirement of s. 5.3 of By-law Number (2005)-17771 having been complied with.

[91] It is clear on the evidence that if Mr. Wilkinson, formerly the Provincial Engineer and occupying the top engineering position in the Ministry of Labour, had been the plans examiner, he would have had no hesitation in accepting the drawings on this project. Likewise, while he might have thought that anchors and ties should have been detailed on the drawing since this was a load bearing wall, Mr. Chapman, too, took the position that the drawings here were as commonly prepared in the trade and he, too, I find, would have approved the drawings and issued a permit.

[92] In the circumstances I find that the City has established on a balance of probabilities that it exercised due diligence in that it reasonably accepted the drawing of the women's washroom of this project.

Should the Involvement of L. Argue, P. Eng., in This Project Have Caused the City to Make Further Inquiries Prior to Issuing a Building Permit?

[93] With respect to this issue the evidence consists of the utterance made by Mr. R. Reynan the Manager of Inspection Services for the City of Guelph and the documents provided by the City to police thereafter.

[94] The evidence of the statement by Mr. Reynan reveals nothing other than he had some understanding that Mr. Argue had been associated with the Silvercreek project on which there had been a prior wall collapse. The documentary evidence consists of drawings of the Silvercreek project stamped by Mr. Argue in his role as professional engineer, the building permit application for Silvercreek and letters from two insurance adjustors putting the City on notice that the City might be involved in the matter in that it issued the building permit for the project. It appears that neither the City of Guelph nor the Ministry of Labour undertook any further investigation in relation to this matter. There is no information before me as to whether litigation was commenced or how the matter was resolved. There is nothing in the evidence that confirms or even suggests any negligence or incompetence on the part of Mr. Argue. I have no additional information about the Silvercreek wall collapse, its cause, or the resolution of the matter.

[95] The Ministry takes the position that the mere association of Mr. Argue's name to the Silvercreek project should have been sufficient to raise a red flag with the City when it came to examining the plans and issuing a building permit for the project which is the subject of this case. Mr. McCaskill relies on R. v. London Excavators & Trucking Ltd., [1998] 40 O.R. (3d) 32 as authority for the proposition that if there is a good reason to be suspicious then one cannot turn a blind eye. In London Excavators the appellant was an excavating sub-contractor on a large construction project at a hospital site. It was performing site grading near a catch basin on the project. The general contractor had advised that the area to be excavated by the appellant was clear of any services. In the course of the excavation, the appellants backhoe operator struck concrete. The general contractor's assistant supervisor was notified and came to the site. He advised that it was part of the footing of an old nursing station that had been previously been exposed on the site and directed the appellant backhoe operator to remove the concrete. In fact, the concrete encased a hydro duct and when it was pierced by the backhoe there was an explosion. It was subsequently determined that, in fact, no hydro locate had been performed in the area and that, had such a locate been performed, it would have indicated the location of the hydro duct, the location would have been marked, and the electricity could have been shut off or disconnected. Indeed, a site plan was produced at the appellant's trial showing the existence and location of the hydro duct. The general contractor was in possession of the site plan, but had not shown it to the appellant.

[96] It was determined in that case that the reliance of the backhoe operator on the assurance from the general contractor was not objectively reasonable in the circumstances. This finding was based on the fact that the initial direction from the general contractor had been that the area the appellant was to excavate was "clear" and that this assurance had been proved to be demonstrably wrong when the concrete was unearthed. It was found that in such circumstances it was not reasonable for the appellant to rely on a further direction from the general contractor to continue to excavate without ensuring that it was safe to do so.

[97] The circumstances in the case at bar are different. In London Excavating there was a clear indication that the information provided by the general contractor in relation to the project at hand had been incorrect. Having discovered the error it was unreasonable for the sub-contractor to have accepted the assurance of the general contractor that the area presented no danger. In the case at hand, there was nothing to indicate to the City that the structural engineer had made an error on this project. Indeed, the City had no information that he had made an error on the Silvercreek project. All that was known was that he had been associated to that project on which there had been a wall collapse.

[98] In the circumstances of the case at bar the drawings had been stamped not only by structural engineer, but by the architect. The evidence before me, uncontradicted, from Dr. Drysdale, Mr. Jeffreys and Mr. Wilkinson was to the effect that the stamping of drawings by a professional architect or engineer indicated an assumption of responsibility and was something that could be relied upon by others including the City of Guelph. Moreover, the Ontario Association of Professional Engineers had continued to licence Mr. Argue. His stamp on the drawings of the women's washroom of this project indicated that he enjoyed the status of professional engineer and was fully licensed by his professional association to do the work which he undertook. It was reasonable in the circumstances for the City to have relied on his professional status. This is a far cry from the circumstances in London Excavating where an obvious mistake had become apparent and yet the appellant continued to rely on the information without further inquiry. I consider whether there is anything in the evidence that should have caused the City of Guelph to take a harder look at the drawings that were submitted or to have questioned Mr. Argue's ability in light of what was known. I am unable to conclude that the information concerning the Silvercreek project should have led to higher vigilance on the part of the City or further investigation into the matter. It was reasonable for the City to rely on the stamp of the architect and engineer in this case particularly in circumstances where the drawing A3 clearly depicted that the privacy wall and the exterior wall were to be connected.

[99] In all of the circumstances I am satisfied on a balance of probabilities that the City reasonably believed in a mistaken set of facts rendering any act or omission on its part innocent. While the City need establish only one of the branches of due diligence to escape liability I am also satisfied on a balance of probabilities that it has established that it took all reasonable precautions to avoid the incident whether or not there is any responsibility on the architect or engineer.

[100] For all of these reasons, the prosecution must fail and the Corporation of the City of Guelph is found not guilty.

Released: February 12, 2013

Signed: "Justice M.J. Epstein"