By Cecilia Nasmith
Local property owner George Foliot pled guilty Friday to failing to ensure the health and safety of workers on his Port Hope property under the Occupational Heath and Safety Act, when an incident at 2:05 p.m. July 3, 2018, resulted in the death of contractor John Mensen.
Justice Robert Beninger accepted the joint submission for a $12,000 fine plus applicable victims' surcharge for a total of $15,000.
Ministry of Labour lawyer Dave McCaskill cited a failure to ensure proper technical site investigation that resulted in Mensen's fatal injury, due to the collapse of the stone foundation wall of a single-family dwelling, an older farmhouse undergoing extensive renovations.
Cement reinforcements had been in place at strategic locations on the foundation, but excavations in connection with the basement weakened the soil integrity and contributed to the collapse. Though a valid building permit was in place – and therefore Foliot would have done all advance work required to obtain the document - investigation of this essential element was not undertaken.
Foliot's lawyer stressed that this was his personal undertaking, not a commercial job site. His client's knowledge extended more to interior design, surface materials, colours and decor – he relied on hired professionals for anything of a more technical nature. Indeed, in the course of this project, he had hired an architect and secured the services of two professional engineering companies to ensure compliance with building-trade regulations. At the time of the tragedy, in fact, he was nearby and on the phone with the architect.
“Mr. Foliot participated fully in the investigation and complied with directions from the Ministry of Labour to stop work,” the lawyer said.
Justice Beninger acknowledged Foliot's stepping forward to accept responsibility. Though the accident surely could have been prevented, he added, “we are past that now.
“I will say there is no previous record, no outstanding orders before the court. He is willing to step forward and acknowledge his responsibility.”
Justice Beninger listened attentively to Mensen's widow Lesley, as she delivered her victim-impact statement, with the sobs of their children punctuating an otherwise-silent room.
Defining “accident” as “an unfortunate event to a person or thing with no malice intent,” she agreed her husband's death was an accident.
“This project was like a perfect storm created with the lack of insight, safety, engineering, knowledge, qualified supervision, and clearly a vision of vanity,” she said.
The owner's wish to retain the ancient rock foundation should never have allowed by municipal officials, Mensen stated, and it was a point of contention between herself and her late husband.
“Three days before his death, I asked him to just stop. To just stop.
“He never did listen to me very well, but I live with that every day.”
Along with the impact of her husband's death, Mensen mentioned the subsequent catastrophic stroke suffered by their youngest daughter – a second crushing blow.
“I will never hear of another tragedy again without now fully understanding the widespread ever-lasting impact it will have on that person's loved ones, friends, coworkers.
“I didn't get to say goodbye. I didn't get to hold his hand. We were sent to the wrong hospital.
“When you hear the news, you go into shock. Sometimes I wish I could come back to that because you're in a fog.
“Your nightmares start after that.”
She added some details about the impact to Mensen's company from a few poor decisions – letting valued and trusted employees go, unfinished jobs that left homeowners hanging, creditors calling but unable to receive answers. From that came more personal fallout – the loss of friends unable to face them, the loss of home and property, finding a new home for their beloved family dog, putting on a brave face for the children when it took all her strength.
“Then, God forbid, your mind starts projecting farther into the future, and you can't imagine that John will never see his beautiful, kind children continue to grow. Who's going to explain to our future grandchildren about the wonderful grandfather they only have in a photo.”
As the financial needs of her children loomed large, she added – continued rehabilitation for their daughter, college for their son - a new fear made itself known: what if something happened to her?
“You start living every moment in fear, so I ask everybody at this table to stop. Please stop and revisit the situation. Revisit the job site.”
Mensen condemned the pace at which some of these jobs are conducted. Proper diligence and compliance may not be cost-effective, she allowed, “but things need to slow down, because otherwise you're getting burned out.”
Mensen characterized the key contractors in the community today as “good ol' boys.” They are getting older and are keenly aware of the shortage of skilled, dedicated youth coming up to supplement and eventually replace them. This produces the potential for overworked contractors, rushed procedures and inspections, too many demands juggled and too many corners cut.
“This project should have never, ever gotten off the ground,” she stated.
“I appreciate the fact that the homeowner has taken responsibility. If measures were taken by all parties, this tragedy probably would not have occurred.”
What concerns her more is whether the practices that led to that fatal accident will continue, whether professionals can learn from such mistakes, whether the fine levied will be big enough to make them think twice about what she called the mad-rush mentality.
“Or will we continue to see on the six o'clock news the next and the next preventable 'accidental' death at a job site broadcasted?
“These are human beings at these job sites. They don't do it for the money – they do it because it's in their blood, because it's a hard job to do. You are never given enough credit, but they are overworking.
“I ask the Ministry of Labour and those in the construction field – please find a way to work together in a responsible manner, and let's change things.”
Following a brief adjournment to consider the statement and the joint submission for sentencing, Justice Beninger commended Mrs. Mensen for a thoughtful address.
“Mrs. Mensen has spoken very eloquently about the loss to Mr. Mensen's family, and I hope changing how things are done in the future can make it safer,” he said.
“Nothing we can do here today properly reflects the impact of what happened,” he added, referring to the fine handed down - “nothing to do with the loss suffered by the family.”
He commended the hard work of the lawyers in their work on the case prior to the court date, and thanked Mensen's family members for being present.
In consideration of Foliot's guilty plea to the charge presented, three other charges of failure to comply with Occupational Health and Safety Act provisions were withdrawn. He has 12 months to pay the fine adjudicated.
