Developer, site superintendent acquitted in construction worker’s death

Subcontractor company pleads guilty, bears sole responsibility after workers failed to follow safety procedures

An Ontario developer and a superintendent of one of its construction sites have been acquitted in the death of a subcontractor’s worker after the subcontractor pleaded guilty to occupational health and safety offences.

On May 12, 2008, Emilio Piccinin, a senior supervisor for University Plumbing and Heating, visited a condominium project in Toronto to see how the company’s workers were doing on their share of the project. The construction site was overseen by Bay Grenville Properties, which was the developer. Piccinin was standing on a third floor mezzanine level — which was the roof of a two-storey building connecting the two towers of the high-rise condominium complex, where concrete forms were stored and lifted to upper levels by a crane as needed — when a one-foot-long piece of cast-iron pipe weighing about eight pounds fell from the 23rd floor of one of the towers above him. It struck Piccinin on his hard hat and caused serious head injuries. He later died of his injuries.

At the time of the incident, the crane was moving a structure called an outrigger that was used as a landing platform for material that couldn’t be hoisted directly to the desired floor because of fresh concrete. Standard safety procedure required a spotter on the ground floor or third floor mezzanine below the crane and another spotter located above the crane where the materials were to be hoisted. The crane operator depended on guidance by the spotters through a radio connection, since he couldn’t see below. The crane operator and spotters were employees of Maple Leaf Structural, another subcontractor at the construction site.

When the outrigger was moved, the spotter had to remove jacks and prepare it to be lifted. Guardrails around the concrete slab — meant to prevent anything from rolling off the slab — were moved just enough to allow the outrigger to be moved, then replaced.

When the platform on the 23rd floor was prepared for the outrigger, a quick inspection was made before the guardrails were moved. However, the piece of pipe seemed to have been missed and was knocked by the movement of the outrigger as it moved into place. The spotter and another worker saw the pipe fall off and yelled at Piccinin, but Piccinin didn’t hear them and was struck by the pipe.

Safety procedures not followed by subcontractor’s workers

The Ontario Ministry of Labour investigated and discovered the lower spotter was not in proper position. He had been asked by the upper spotter to retrieve a radio or battery from a trailer and wasn’t present to warn Piccinin that overhead work was taking place and to keep away from the hoisting area.

The ministry charged Maple Leaf under the Ontario Occupational Health and Safety Act for failing to comply with safety provisions regarding the storage and movement of material or equipment that endangered a worker. The company pleaded guilty. University Plumbing and Heating was charged as an employer for failing to ensure that "the measures and procedures" for safety were carried out.

Bay Grenville was also charged as the "constructor" for the site and Doug Wood, the site superintendent employed by the general contractor, was charged as a supervisor under the act. The charges against Bay Grenville and Wood were related to failing to ensure overhead protection on the third-floor hoisting area, failing to remove debris from the 23rd floor, failing to ensure material was stacked so it wouldn’t roll away, and failing to post warning signs in the hoisting area.

The court found the evidence and the fact Maple Leaf pleaded guilty led to the conclusion the company bore "at least primary responsibility for the tragic accident that occurred."

The crane operator should not have been directed to move the outrigger before ensuring there was nothing on the platform and the lower spotter was in place. This was contrary to established procedure and the fault of the Maple Leaf workers, said the court.

The court pointed out that Bay Grenville had agreements with its subcontractors — Maple Leaf and University Plumbing and Heating — that they comply with the act and its own site-specific safety requirements. Bay Grenville developed a safety manual which it provided to the subcontractors, which included "overhead protection or appropriate barricades and pedestrian control measures" when work was being carried out above.

The court found the piece of pipe rolling off the slab at the exact brief moment the guardrails were moved was partly a "freak" accident that was compounded by the Maple Leaf workers’ failure to follow procedure. The evidence pointed towards Bay Grenville and Doug Wood as its site superintendent as being committed to a safe construction site — they had even engaged safety consultants who didn’t raise any concerns, said the court. As a result, the court found Bay Grenville and Wood had taken "every reasonable precaution to avoid a failure to provide adequate overhead protection" and the "rather bizarre departure" of the Maple Leaf spotter from normal procedure was unforeseeable by the developer.

"A site superintendent of a project on this scale — 25 trade subcontractors, with 60 Maple Leaf workers alone) would necessarily have to rely on others to perform their jobs in accordance with the law and the systems put in place to safeguard the workers there," said the court.

The court ruled Bay Grenville and Wood demonstrated due diligence and were not responsible for the incident causing the death of Piccinin. Maple Leaf — with its guilty plea — had sole responsibility.

For more information see:

Ontario (Ministry of Labour) v. Bay Grenville Properties Ltd., 2014 CarswellOnt 10099 (Ont. C.J.).

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