In a case that will be closely watched, an Ontario judge has permitted a class action lawsuit against the Ministry of Labour for “negligent inspection” of a workplace.
The case arises from the collapse of the roof-top parking deck at the Algo Centre Mall in Elliot Lake, Ontario, in which two people were killed and many more injured.
The class action was brought by owners of one of the restaurants in the mall, which was one of the businesses affected by the collapse. The “class” of claimants included people in the mall at the time of the collapse, business tenants and employees working at the mall.
The plaintiffs argued that Ministry of Labour inspectors had performed more than 130 inspections at the Mall over approximately 30 years, and had received numerous complaints about the condition of the mall and the dangers of water leakage problems.The plaintiffs claimed that Ministry of Labour inspectors should have followed up with reasonable investigations and in failing to do so, they were negligent.
The court stated:
“A government body such as the Ministry of Labour that exercises statutory power to conduct safety inspections owes a duty of care to all who may be injured as a result of a negligent inspection.Thus, for example, once the decision to inspect has been made, the court may review the scheme of inspection to ensure it is reasonable and has been reasonably carried out in light of all the circumstances, including the availability of funds, to determine whether the government agency has met the requisite standard of care.”
Although the Occupational Health and Safety Act provides limited liability-protection to Ministry of Labour employees, including inspectors, it expressly provides in section 65(2) that the Ministry of Labour itself may be held liable for acts of inspectors.
The judge therefore decided that the class action for “negligent inspection” could proceed against the Ministry of Labour. It should be noted that the court has not yet found the Ministry of Labour liable, but simply said that the class action may proceed.
There are numerous other defendants in the class action, a group described by the court as “everyone involved in the planning, construction, inspection, ownership and maintenance of the shopping centre over the years”.That group includes the mall, the owners of the mall, the City of Elliot Lake, and a number of architects and engineers,
Quinte v. Eastwood Mall, 2014 ONSC 249.