Worker Killed in Excavation, $150,000 Fine for Contracting Company

November 27, 2019 4:30 P.M.

Ministry of Labour, Training and Skills Development

Convicted: Kurtis Smith Excavating Inc., a sewer and watermain contractor, 225 Industrial Park Drive, Brussels, Ontario.

Location of Worksite: A construction project at 45415 Perth Line 86, west of the town of Listowel.

Description of Offence: A worker was killed when a 1,600-pound bollard made of steel and cement fell into an excavation and struck a worker.

Date of Offence: May 30, 2018.

Date of Conviction: November 26, 2019.

Penalty Imposed:

  • Following a guilty plea, Kurtis Smith Excavating Inc. was fined $150,000 by Judge Katherine Stacy Neill in provincial offences court in Stratford; Crown Counsel Line Forestier.
  • The court also imposed a 25-per-cent victim fine surcharge as required by the Provincial Offences Act. The surcharge is credited to a special provincial government fund to assist victims of crime.


  • On May 30, 2018 the defendant’s workers were engaged in a project that consisted, in part, of grading a parking lot and reinstalling four metal bollards into a four-foot excavation to protect a wellhead.
  • One worker was operating an excavator with a bucket attachment and two other workers were involved at some point in preparing the base of the excavation. At the time of the incident only one worker was working in the excavation.
  • The bollards being installed in the excavation were made of steel and cement, weighed about 1,600 pounds each and were about nine feet in height. A portion of the bollard rests underground and a portion protrudes from the surface to act as a guardrail to prevent vehicles from hitting the wellhead.
  • The first three bollards were moved individually while located in the bucket and were lowered into the base of the excavation. The fourth bollard could not be lowered into the excavation while in the bucket because there was insufficient room in the excavation to allow the bucket to manoeuvre. 
  • A metal chain was attached to the bucket to hoist the last bollard into the excavation. One end of the chain was attached to the bucket and the other end was wrapped around the base of the bollard’s handle.
  • The load was suspended from the excavator bucket in the exact position it needed to be placed into the excavation. The bollard was lifted and placed into the excavation but the two workers in the excavation noticed it did not line up with the other installed bollards.
  • The bollard was hoisted from the excavation to the ground surface and detached from the bucket. Some gravel was removed and the bollard was then reattached to the bucket with the chain and hoisted. At this time, only one worker was located in the excavation.
  • The bollard slipped out of the choked chain wrapped around the handle, fell into the excavation and tipped over, striking and killing the worker.
  • The (then) Ministry of Labour conducted an investigation and concluded:
  • The metal chain used to hoist the bollard was inappropriate for its intended use and not designed for hoisting. The chain was designed and manufactured to secure material in place, for example, to fasten a load to a flatbed truck during transportation.
  • The hooks at the ends of the chain were not equipped with a safety catch mechanism.
  • A nylon sling designed for hoisting should have been used for this hoisting operation.
  • None of the workers involved had received hoisting or rigging training.
  • An employer must ensure measures and procedures set out in the Occupational Health and Safety Act and in Ontario Regulation 213/91 (the Construction Projects Regulation) are followed to protect the safety of workers on a construction project.  One such requirement at section 172(1)(a) of the regulation requires that slings or similar devices for rigging and hoisting an object be suitable for this use. 
  • The defendant failed to ensure the measures and procedures outlined at section 172(1)(a) of the regulation were followed and thereby did violate section 25(1)(c) of the act.