Sudbury acquitted of charges related to workplace injury at Flour Mill silos

An appeals court has cleared Greater Sudbury of charges under the Occupational Health and Safety Act in a 2022 worker injury.

An appeals court has ruled Greater Sudbury wasn’t responsible for injuries in 2022 to a man working for a contractor hired to clear the area around the city’s historic flour mill silos.

The appeals court judge ruled the city hired the contractor because of their expertise in locating and remediating hazards around the silos.

The silos have not been used for decades and have been owned by the city for the last 60 years.

“As a result of the disrepair of the silos and the need to generally clean up the site, the city hired C.K. Construction to undertake a rehabilitation process that would make the site safe for public use,” the court decision said.

“The site was overgrown with vegetation and there were biohazards that consisted of hypodermic needles. C.K. was to remove the biohazards, clean up the ground vegetation, undertake fence repair as well as repair of loose concrete and brick on the concrete silos.”

C.K. brought in a “mobile elevating work platform” that was used for work on the silos. As work was completed, the platform was moved to the next spot.

“While the man basket containing a C.K. employee was descending from approximately 90 feet, the left front wheel sank into an old, covered drinking fountain service box with the result that the basket tipped over and landed on the ground,” the court said.

“The C.K. employee inside it was seriously injured.”

Following an investigation, the Ministry of Labour charged the city with two offences under the Occupational Health and Safety Act.

To be cleared of the charges, the city had to prove it had taken all reasonable efforts to ensure the safety of the site. While the trial judge found the municipality guilty, the appeals judge ruled that C.K. was hired specifically to find and remediate hazards at the Flour Mill site.

Documents show that the city conducted a document search of the watermains in the area running under Notre Dame Avenue and found “no record of a lateral water line to service the Flour Mill site.”

‘Walk-through’ before work began

Before the work began, city staff took C.K. on a “walk-through” of the property to point out potential hazards.

“The ability to conduct a more thorough walk of the property was limited by the vegetation and accumulation of topsoil as well as the presence of biohazards,” the court said.

The appeals court ruled that in such cases, an examination of the possible steps the city could have taken has to be considered when determining whether all reasonable steps were taken.

That includes a review of all available municipal records, which was done. Another step would be to examine the site itself, which took place during the walk-through.

“A third source of information would consist of actual knowledge of the danger or hazard, but it is uncontested that the city had no knowledge of the underground structure that led to the collapse,” the court decision said.

While the trial judge ruled that the city failed to inform C.K. about all the potential hazards and to conduct a more thorough walk-through, the appeals judge disagreed.

“The fact of the matter is that given the existence of the vegetation and the biohazards, it was not possible to walk the entire site,” Superior Court Justice Dan Cornell said in his decision dated July 10.

“C.K. had, in fact, been hired to do the very work that prevented a walk of the entire site from being undertaken. In other words, it was C.K. that was to undertake the work to clear the vegetation, remove the biohazards and otherwise make the site safe for public access.”

The law states that an employer can hire a firm with the proper expertise to “undertake work that cannot be safely performed by an owner/employer. That is exactly the reason why C.K. was hired to undertake this work, as C.K. had the requisite experience and expertise.”

“Respectfully, the trial judge’s finding that the city failed to provide information to protect the safety of the workers and failed to advise about the hazards in the workplace is not supported by the evidence nor is the finding that the city did not take all reasonable precautions to prevent the commission of the offences,” Cornell wrote.

“Although the trial judge finds that ‘other steps were available,’ there was no evidence brought forward during the course of the trial to support this conclusion.”

Read the full decision here.