By Doug Hallett
A judge’s ruling this week has made it more likely that no one will ever be held accountable for the death of a 14-year-old girl in a city-owned washroom in the south end in 2009.
A provincial court judge dismissed a charge against the City of Guelph laid by the provincial Ministry of Labour in the death of Isabel Warren. A Grade 9 student at Bishop Macdonell high school, she died after a cinder block wall in a park washroom behind her school collapsed on her during a noon-hour break from a phys-ed class on the last regular day of classes on June 16, 2009.
“This wall was a danger to anyone near it,” Mr. Justice Michael Epstein of the Ontario Court of Justice declared Tuesday as he acquitted the city of the charge under the provincial Occupational Health and Safety Act.
After the judge spent 1 ½ hours reading his ruling, the girl’s grim-faced parents quickly left the provincial courthouse on Carden Street and refused speak to reporters seeking their reaction to the decision.
The Ministry of Labour also laid one charge each under the same provincial act against architect L. Alan Grinham and engineer Larry Argue, who were both involved in building the washroom in 2004. However, Judge Epstein dismissed the charges against them last April on the grounds the charges were laid after expiry of a one-year statute of limitations. The Ministry of Labour, which is appealing the dismissal of the charges against the two men, will pursue this appeal May 16 at the Superior Court of Justice on Woolwich Street, said David McCaskill, the prosecutor in the Warren case.
McCaskill, a Crown counsel for the Ministry of Labour, would not comment to reporters on whether the dismissal of the charge against the city Tuesday might also be appealed.
The closest Judge Epstein came in his ruling to laying any blame for the tragic death came when he looked at the role played by a masonry firm that was subcontracted to build the 6 ½-foot “privacy wall” inside the women’s washroom.
“It is clear to me,” he said, that there was an “outright failure” on the part of the masonry firm to properly build this interior wall. “It should have been obvious” to the masonry firm that the wall needed to be anchored, he said.
Asked by a reporter if the masonry firm might now be prosecuted, McCaskill said this isn’t possible. “Not under our legislation. Our legislation gives us strict parameters as to who we can prosecute,” he said.
Both the Ministry of Labour and Guelph Police investigated the death, sometimes conducting joint interviews of people connected to the case.
Police decided not to lay any criminal charges, but the ministry charged the city with failing to ensure its workplace was safe by ensuring every part of the washroom structure could resist all loads to which it was subjected. The trial of this charge ended in September, with the judge reserving his ruling until Tuesday.
“Neither the city nor the community will forget the tragic incident that claimed the life of 14-year old Isabel Warren,” the city’s chief administrative officer, Ann Pappert, said in a city hall news release shortly after Tuesday’s ruling. “We hope the court decision offers some closure, and our thoughts are with Ms. Warren’s family and friends.”
Judge Epstein more or less called the unanchored privacy wall in the washroom an accident waiting to happen. A change table was bolted to the privacy wall by brackets, and the wall collapsed on Warren when she “attempted to boost herself onto the change table,” the judge said.
Not a lot of force was exerted on the wall by the girl, and “the wall certainly should have been able to withstand it,” he said. This privacy wall, which was built in the same manner as a similar wall in an adjoining men’s washroom, “represented a continuing danger to those who had access to the washroom,” including cleaners employed by the city, he said. “This wall was a danger to anyone near it,” the judge said.
He said the evidence showed the privacy wall “had not been anchored” to the abutting interior wall or to the floor when it was built.
However, this lack of anchoring couldn’t be seen until after the wall had collapsed, he said.
Judge Epstein said the city had no direct part in designing or building the washroom. It was “reasonable” for the city to rely on written assurances from professionals it had hired, including Grinham and Argue, that the building project was done in a satisfactory way, he said.
The city’s position was that it acted reasonably in relying on “stamps” from the architect and engineer it hired, and “it is my view that it is reasonable for a municipality to do so,” the judge said.
The trial heard evidence from four professional engineers, including recognized experts in masonry construction, the judge said. There was no disagreement among the engineers that the privacy wall was “improperly constructed,” he said, but there was disagreement about the adequacy of the drawings used for construction of the wall.
There was no evidence that the masonry firm “brought any concerns” about the drawings to anyone else involved in the project, he said.
A lawsuit filed by Warren’s family in connection with her death was settled more than two years ago, but the details of the settlement haven’t been made public.
The girl’s family filed a $2.8-million lawsuit against the City of Guelph and other parties connected with designing or building the washroom. The city didn’t file a statement of defence. Instead, a settlement was reached with lawyers for the family. One of the requirements of the settlement was confidentiality by both sides about details.