View cases - Stewart McKelvey

16[49] There is nothing wrong with what Mr. Della Valle did. The question is whetherwhat he did was sufficient compliance with s.17 of the OHS Act. After his meetings withMacNeil and Routledge the defendant assumed a passive role. In assessing what heought to have done, both his job description and the OHS Act provide important context.For ease of reference I have included some of these sections in Appendix A.[50] Defense counsel submits that Mr. Della Valle “was in the wrong place at thewrong time.” If he hadn’t happened to stop by Mr. MacNeil’s office the day the samplewas going off for analysis he wouldn’t ever have been caught up in this scenario.Knowing how Mr. MacNeil, for one, dealt with the Muggah report, it is indeed possiblethat Mr. Della Valle would never have known about the situation had he not droppedinto MacNeil’s office that day. He did not cause the problem and did not ask for it.However, in another sense, Mr. Della Valle was in the right place at the right time. Hehad an opportunity to address this issue on a number of fronts. It appears that he wouldhave chosen to give the letter only to Mr. MacNeil, and done nothing else. In thecircumstances the OHS Act demanded more.[51] One sees in the Muggah report, and it is confirmed by the actual remediationplan which eventually was put into effect, that a proper response involved notificationand advice to tenants, physical modification of the premises, use of specializedequipment, advice to employees and contractors and attendant budgetary measures.This goes well beyond the job description of any one person, maintenance supervisor orotherwise. If such steps had indeed been implemented as a result of the defendant’sconversations with MacNeil and Routledge in October, it would necessarily involvealmost the entire Housing Authority staff in one way or another. Not being aware of anysuch measures subsequent to October 2005 should have raised a concern with thedefendant and prompted follow-up with the two supervisors.[52] Defense points out that after April 2006, when an action plan was developed andimplemented, the defendant was consigned to the role of fielding questions fromconcerned tenants. While this may lend support to Mr. Della Valle’s belief that he wouldplay little part in addressing the risk, i.e. in implementing a remediation plan, it does notexplain why he should not have given wider circulation to the Muggah report in the firstplace and subsequently ensured that appropriate action of some sort was in factinstigated.[53] Steps that Mr. Della Valle should have undertaken include:A. Immediate notification of Ms. McKeough of the contents of Mr. Muggah’s reportof October 25 , 2005. Given the knowledge possessed by Mr. Della Valle, Mr.