Death of Supervisor Results in $200,000 Fine for Hamilton Construction Company

Labour, Training and Skills Development

Convicted: McNally Construction Inc., head office 1855 Barton Street East, Hamilton, Ontario, a business in the construction and tunnelling industry.

Description of Offence: A worker was fatally injured when a mini-excavator being operated in a pipe tipped over. The mini-excavator did not have the required cab or screen, which might have protected the worker.

Date of Offences: June 21, 2018.

Date of Conviction: February 11, 2021.

Penalty Imposed:

  • Following a guilty plea in provincial offences court in Hamilton by Justice of the Peace Mitchell S. Baker, McNally Construction was fined $200,000; Crown Counsel Joe Ferraro.
  • 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 June 21, 2018, a construction crew was working on a construction project Hamilton. Work was being performed in an underground pipe.
  • A supervisor was operating a mini-excavator that had been lowered down a shaft and into the underground pipe. The diameter of the pipe measured 1.8 meters at that location.
  • The tip over protection system (TOPS) of the mini-excavator had been removed prior to it being lowered down and into the pipe. It is not known when the TOPS was removed or by whom. A TOPS protects a mini-excavator from tipping over and can protect an operator of a mini-excavator from overhead hazards.
  • The supervisor decided to operate the mini-excavator. While operating it the supervisor was fatally injured when the front tracks of the machine lifted, causing the worker to be pinned between the top of the inside of the pipe and parts of the mini-excavator.
  • Section 99 of the Construction Projects Regulation (Ontario Regulation 213/91) requires that a cab or screen be provided to protect a worker who is exposed to an overhead hazard while operating a vehicle. As such, the defendant failed to ensure that the equipment, materials and protective devices provided by the defendant were used as prescribed, contrary to section 25(1)(d) of the Occupational Health and Safety Act.
  • This is a second offence for the defendant under the act. There is one prior conviction from 2013 involving the death of a young worker. The fine imposed on the prior conviction was $170,000 after a plea of guilty.