Construction Law - ONCJ

The defendant in a Building Code Act prosecution brought a second disclosure motion seeking field notes, memoranda, and investigators' files from the City of Toronto.

The first disclosure motion had been denied as a fishing expedition.

However, the defendant subsequently obtained documents through a Freedom of Information request that supported potential defences of officially induced error, statute of limitations, and legal non-conforming use.

The court found the defendant satisfied the onus to establish relevance and granted the second disclosure motion, noting the City did not respond to oppose it.

A worker employed by Vixman Construction Ltd. was fatally injured when he fell approximately 3.6 metres from a work surface at Billy Bishop Toronto Island Airport on March 27, 2018.

The Crown prosecuted Vixman under the Occupational Health and Safety Act for failing to ensure that prescribed fall arrest measures and procedures were carried out in the workplace.

Specifically, the Crown alleged violations of Ontario Regulation 213/91 regarding the improper anchoring of a self-retracting lifeline (SRL) and the failure to ensure that the fall arrest system was arranged so that a worker could not hit the ground or an object below the work surface.

The defendant argued a due diligence defence, claiming it had implemented comprehensive safety training, policies, and procedures.

The court found that while Vixman maintained a robust safety program, it failed to enforce critical specific requirements at the job site, including the failure to calculate fall clearances prior to work commencement and the failure to ensure the use of a safe anchoring method.

The court convicted Vixman on both counts, finding that the defendant did not discharge its burden of proving that every reasonable precaution was taken.

The City of Oshawa appealed a trial justice's decision quashing an Information charging a corporation with failing to obtain a building permit for renovations to an aircraft hangar at the Oshawa Airport.

The trial justice found that the doctrine of interjurisdictional immunity applied, immunizing the respondent from provincial building code enforcement because the property was integral to federal jurisdiction over aeronautics.

The appellate court dismissed the appeal on the merits, finding the trial justice correctly applied the doctrine.

However, the court set aside a costs award of $111,000 plus HST against the prosecution, finding insufficient evidentiary foundation for such an award and palpable and overriding error in the trial justice's reasoning regarding the conduct of the prosecutors and the City of Oshawa.

The defendant, a subcontractor specializing in underground construction and grouting, was charged with three counts under the Occupational Health and Safety Act (OHSA) following the death of a worker and serious injury to another when a drill rig collapsed at a Toronto Transit Commission subway extension project at York University.

The charges alleged failures to provide an adequate work platform for the drill rig, to ensure the platform could support loads in accordance with good engineering practice, and to operate the machine in accordance with the manufacturer's manual.

The court found the defendant guilty of Count 5 (failure to design an adequate work platform by failing to identify soil bearing capacity as required by manufacturer specifications) but acquitted on Counts 6 and 7.

The court determined that while the defendant transmitted manufacturer specifications to the general contractor, it failed to follow up and verify that the soil's bearing capacity had been adequately assessed before operating the rig.

Avenue Building Corporation was charged under the Occupational Health and Safety Act with failing to ensure that equipment being moved was moved in a manner that did not endanger a worker, following an incident where an employee broke his leg when a 4x4 he was using to move a wall form broke.

The trial judge found the corporation guilty, concluding that the corporation failed to exercise due diligence by allowing workers discretion in tool selection without adequate training and supervision, and by failing to include written procedures for moving wall forms.

On appeal, the appellate court found that the trial judge misapprehended the specific charge and failed to properly apply the due diligence analysis to the correct actus reus, warranting a new trial.

Four defendants—two corporations and two individuals—were charged with twelve counts of offences under the Occupational Health and Safety Act arising from a fatal accident on May 12, 2008, at a condominium construction site in Toronto.

A piece of cast iron pipe fell from the 23rd floor and struck a senior supervisor, Emilio Piccinin, causing his death.

A former co-defendant, Maple Leaf Structural Ltd., pleaded guilty to one charge.

The remaining defendants pleaded not guilty and proceeded to trial.

The court found that while Maple Leaf bore primary responsibility for the accident, the remaining defendants exercised due diligence and did not breach their statutory duties under the Construction Projects Regulation.

All charges against the remaining defendants were dismissed.

The defendant, a construction company, was charged under the Occupational Health and Safety Act with failing to ensure that a temporary wooden brace used in a winch system was designed and constructed to support or resist all loads and forces to which it was likely to be subjected.

The charge arose from a fatal construction accident in which a worker died when the wooden brace failed.

The court found that the Crown failed to prove beyond a reasonable doubt that the wooden brace was inadequately designed and constructed for the likely forces it would encounter, given its intended use for achieving alignment rather than applying maximum force.

The court also found that the defendant exercised due diligence by relying on manufacturer instructions and industry standards.

The defendant was acquitted.

A construction contractor was charged with two counts under the Occupational Health and Safety Act following an accident on October 28, 2009, where a worker was struck by a falling steel beam (soldier pile) that broke free from its tack weld during a vibratory hammer operation.

The first count alleged failure to ensure adequate bracing under Ontario Regulations 213/91.

The second count alleged failure to take every reasonable precaution for worker protection under section 25(2)(h) of the OHSA.

The court dismissed the first count but convicted on the second count, finding that while the multiple-pile welding method was lawful and industry-accepted, the employer failed to take reasonable precautions by positioning workers in a danger zone without proper risk assessment or safety measures.

The defendant, owner of a multi-unit residential building, was charged with five violations of the Fire Protection and Prevention Act, 1997 relating to the Fire Code.

The charges involved: combustible materials stored in a means of egress; obstruction of a means of egress with items on stairs; obstruction of an exterior stairway; failure to maintain an exterior stairway in good repair; and a breach of fire separation requirements between dwelling units.

The defendant raised defenses of temporary storage and necessity, which were rejected.

The court found the defendant guilty on all five counts based on clear photographic evidence and testimony from the Fire Prevention Officer.