Ontario Ministry of Labour faces negligence suit

Lone survivor of 2009 Christmas Eve workplace accident alleges ministry failed to enforce, train safety

The Ontario Ministry of Labour and its inspector are under the microscope as part of a negligence suit launched by the only survivor of a 2009 Christmas Eve workplace accident that saw a construction company fined $750,000 for safety violations.

Dilshod Marupov and other plaintiffs allege the ministry failed to enforce statutory requirements for safety; failed to properly train its employees to inspect the scaffolding and enforce statutory safety requirements; and hired employees who were incompetent and did not use the requisite care in inspecting the premises and scaffolding, as well as other allegations. None of the allegations have been proven in court.

Marupov was one of five migrant workers who fell 13 storeys from a collapsed scaffold outside a Toronto apartment building. Last fall the Ontario Court of Appeal levied a fine of $750,000 in its ruling in R. v. Metron Construction Corp.

On Apr. 18, 2011, the province was served with a consolidated statement of claim commenced by and on behalf of three workers (one deceased, one physically injured worker, and one claiming emotional trauma) and their family members. The claim seeks approximately $47 million in damages and named as defendants six companies and Her Majesty the Queen in Right of Ontario (Ontario).

Between May 2010 and February 2011, separate actions were commenced against the Crown on behalf of one deceased worker, by the worker who was injured in the accident and his family members, and a worker claiming damages for emotional suffering and his family. The actions against the Crown allege that the Crown, as represented by the Ministry of Labour, breached a duty of care owed to the plaintiffs by failing to monitor and/or enforce the Occupational Health and Safety Act with respect to the incident in question.

The lawsuit filed in 2011 arises out of the collapse of the swing-stage used during the balcony repairs on Dec. 24, 2009. The action is not against the inspector personally, but the province of Ontario/Ministry of Labour.

Under the Occupational Health and Safety Act, s. 65, it states that no claim can be made against any person in the execution of performance in good faith of their duties if they are an employee of the Ministry.

"It would appear if the inspector is acting in good faith in the performance of their duties then they can’t be sued but that doesn’t mean the government can’t be sued," says Adrian Miedema, partner in the employment group at Dentons Canada LLP.

During recent examinations for discovery in the lawsuit, the ministry was asked to answer but refused questions around the education, training, workload, and experience of the inspector assigned to the job site.

The defendants moved to compel the ministry to answer questions refused at the examination for discovery of its representative Henrik Vogt on June 24, 2013.

The plaintiffs brought a motion to the court and Master Ronald Dash ordered the ministry to answer most of the refused questions. He stated that:

The court noted that "core policy" decisions of government are protected from lawsuits, but governments may attract liability in tort "where government agents are negligent in carrying out prescribed duties."

"It seems to be new territory in terms of an action against the ministry," says Miedema.

He says part of the issue the courts will struggle with is if the ministry and its inspectors feel that each time they come across a workplace they may feel they are at risk for being sued for negligent inspection if they don’t fully analyze all potential issues and that could interfere with the way inspectors do their jobs.

"Someone might turn around and say, ‘You were at our workplace and didn’t identify this issue,’" he says. "Even if you’re not going to be sued personally, your employer could be sued in relation to work you did and that’s not a very comfortable thing."

It’s not the first case of its kind to look at the work of inspectors — earlier this year an Ontario judge permitted a class action lawsuit against the Ministry of Labour for "negligent inspection" of a workplace.

That case involves the collapse of the rooftop parking deck at the Algo Centre Mall in Elliot Lake, Ont., in which two people were killed and others were injured.

The plaintiffs argued that ministry inspectors had performed more than 130 inspections at the Mall over about 30 years, and had received numerous complaints about the condition of the mall and the dangers of water leakage problems.

The plaintiffs claimed that inspectors should have followed up with reasonable investigations and in failing to do so, they were negligent.

Also, in 2009 in Abarquez v. Ontario a group of 53 nurses sued the Ministry of Labour for failing to enforce its occupational health and safety standards during SARS. It was somewhat different as the court emphasized the allegation wasn’t that an inspection was conducted in a negligent way, but that it did not inspect at all.

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