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Sudbury found not guilty on charges related to 2015 pedestrian death

City faced seven charges under the Occupational Health and Safety Act
On Sept. 30, 2015, Sudbury woman Cecile Paquette died when she was run over by a grader operated by an employee of Interpaving Ltd. at a downtown construction site. Interpaving pleaded guilty, while the City of Greater Sudbury was found not guilty. (File)

The City of Greater Sudbury has been cleared of all charges it faced under the Occupational Health and Safety Act in the 2015 death of Cecile Paquette.

Paquette was killed Sept. 30, 2015 when she was run over by a grader that was working at the downtown intersection of Elgin and Beech streets.

The City of Greater Sudbury pleaded not guilty to seven charges from the Ministry of Labour, which attempted to prove the corporation was the constructor and the employer of the project, and therefore culpable in the circumstances that led to Paquette's death. One charge was dismissed on the first day of trial at the urging of the Ministry of Labour (MOL).

The MOL, in its prosecution, alleged the contract wording between the city and Interpaving Ltd. contained provisions that could enable the city to assume the role of constructor. 

However, Judge Karen Lische  said in reviewing the evidence, there is no suggestion that any contractual provision was invoked on the project that would make the city the constructor. 

“It is crystal clear, according to the evidence at trial, the owner was the city and constructor was Interpaving,” Lische said. “This is not a case where the city is attempting to evade its statutory duty. This court finds that the MOL has failed to show that the city assumed the role of constructor or assumed control over the Elgin project.

“Moreover, it is clear, according to the evidence, that Interpaving assumed the role of the constructor of the Elgin project. The court is not satisfied beyond a reasonable doubt that the evidence indicates otherwise.”

Interpaving had actual, factual control and direction of the Elgin project, she said. Interpaving, the constructor, was responsible for health and safety.

The company was found guilty of one charge back in March, while two others were withdrawn by the Crown. Interpaving was fined $195,000 under the OHSA.

Furthermore, in dismissing the three charges alleging the city was the employer on the project, Lische said in the court's view, the city was not an employer within the meaning of the OHSA.

“Although (city) inspectors would attend the Elgin project from time to time, their role was quality assurance and ensuring the work being performed by the constructor was in accordance with the contract so that progress payments could be made,” Lische said. “It was clear from the evidence that the inspectors had to follow the health and safety guidelines of Interpaving. Interpaving had control over the inspectors when they were at the Elgin project worksite.”

As the owner of the project, the city had no obligation to ensure Interpaving and its workers complied with the OHSA, she said. An owner who does not become a constructor has very limited obligations under the Act.

“This court has not found they (the city) were a constructor,” Lische said. “This court has not found that they (the city) were an employer.”

David McCaskill, Crown attorney for the Ministry of Labour, disagreed. He said the MOL would never have started prosecution if it didn't believe the City of Greater Sudbury was not guilty.

McCaskill said he will now take some time to go over Lische's written report. If the MOL decides to appeal the decision, they have 30 days in which to do so.

The City of Greater Sudbury in a brief statement said they respect the decision.

“We remain confident in our position on this matter and respect the ruling made by the court and outcome from today’s hearing,” said city solicitor Eric Labelle.

Mayor Brian Bigger issued the following statement regarding the court decision.

"The safety of the public and our workers is of utmost importance to the organization, and we will always take this very seriously. The City of Greater Sudbury respects the decision of the court in this matter, and will continue to comply with all applicable legislation relating to health and safety."