Narrow reading of liability for Architects and Engineers under the OHSA

A recent decision, R v The Corporation of the City of Guelph et al.[1] provides a narrow interpretation of limitation periods in the Occupational Health and Safety Act (the “OHSA”) for negligent or incompetent work by architects and engineers, limiting the time frame of potential liability.  A professional engineer or architect can be charged under the OHSA when a worker is endangered as result of negligent or incompetent advice.[2]

In 2003, the City of Guelph undertook a project in one of its park to build a washroom, utility rooms and change rooms. It hired an architect and an engineer to design and approve the project. The building was substantially complete by June 18, 2004.  The City relied on the professional expertise of the architect and engineer and their written assurances that the building was fit for use.

In June of 2009, a wall collapsed in the women’s washroom of the building, killing an individual.  The City was charged with failing as an employer to ensure that a wall or other part of a workplace was capable of supporting any loads that are applied to it under section 25(1)(e) of the OHSA. The architect and engineer were charged under section 31(2) for providing negligent or incompetent advice which endangered a worker.  Section 69 of the OHSA provides that no prosecution “shall be instituted more than one year after the last act or default upon which the prosecution is based occurred.”

The Crown argued that the relevant time for the start of the limitation period is when the workers are endangered. The court disagreed, finding that the limitation period for the charges against the architect and engineer had expired.  The court distinguished between a continuing ill effect of an improper act and the improper act itself. The act was complete when the work was performed and the fact that there could be continuing ill effects does not create a continuing offence.

This decision severely curtails the liability of architects and engineers under the OHSA.  As a practical matter, this decision means that engineers and architects will not be held liable for violations of the OHSA which occur more than one year after the potentially negligent advice or certification has been provided.  The Ministry of Labour urged the Court to broadly interpret the OHSA in order to best give effect to the intention of protecting workers over the long-term.  The Court held that no matter how generous of an interpretation was put on the limitation provision, the plain wording of the OHSA made it clear that the case could not proceed against the engineers.

Interestingly, the Court took a different approach to the defendant municipality which argued that the limitation period applied to it as well.  The Court rejected this argument and held that the OHSA imposes a continuing obligation on the municipality. It noted that there would be nothing to compel an employer to ensure safety of workers in the workplace on a continuing basis if the municipality’s argument were accepted.

The Court determined that the charges against the engineers related to specific advice given on a specific date and that the municipality had a general and on-going obligation to protect worker safety which allowed the charges against it to proceed.  It should be noted that the limitation period under the OHSA does not prevent civil litigation or professional discipline proceedings from being commenced against the engineers.

[1] 2012 ONCJ 251 (CanLII)

[2] OHSA, s. 31(2)

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