City acquitted after judge finds hidden underground vault could not reasonably have been discovered
The Ontario Superior Court of Justice has acquitted the City of Greater Sudbury on two workplace safety convictions tied to a 2022 accident at the city's Flour Mill site. Mr. Justice R. Dan Cornell, allowing the City's appeal under the Occupational Health and Safety Act.
The charges followed the collapse of a mobile elevating work platform whose wheel sank into a hidden underground utility vault while descending from about 90 feet, tipping the platform and seriously injuring a C.K. Construction employee inside its basket.
Justice Cornell found the trial judge's conclusion that "other steps were available" to prevent the accident was made "without any supporting evidence," calling this a palpable and overriding error requiring the Ontario Superior Court of Justice to intervene.
The convictions fell
At trial, the judge found the City had not exercised due diligence, citing the fact that "the entire site was not walked with C.K. at the kick-off meeting." But Justice Cornell noted this was impossible given dense vegetation and biohazards, including hypodermic needles, covering the site.
The City had searched municipal archives, building permits and planning records beforehand, finding no trace of the vault. It had hired C.K. specifically for its remediation expertise, with Justice Cornell writing that "the law is clear that an owner/employer can hire an entity with the experience and expertise to undertake work that cannot be safely performed by an owner/employer."
When asked during the appeal what additional steps the City could have taken, Crown counsel suggested Lidar scanning, then, once told vegetation blocked that option, proposed excavating the site outright. Justice Cornell said these suggestions "simply serve to reinforce the fact that the City did make all reasonable efforts."
Findings and outcome
Evidence showed the vault was buried under topsoil with an unremarkable surface, and that C.K. had previously driven a skid steer over the spot without incident. The Ontario Superior Court of Justice concluded the hazard was "a latent defect of which both the City and C.K. had no knowledge whatsoever."
Drawing on the Supreme Court of Canada's 2023 ruling in a related Greater Sudbury case, the court reaffirmed that due diligence "is not a standard of perfection." Justice Cornell rejected the trial judge's characterization of the City's efforts as "perfunctory," finding no basis in the record for that conclusion.
The Ontario Superior Court of Justice allowed the appeal in full, acquitting the City on both counts. Counsel of record were David McCaskill for the Crown and Ryan J. Conlin for the City.
