An excavation contractor successfully overturned a compliance order and administrative penalty after Nova Scotia’s Labour Board found insufficient evidence that digging near a tower crane created safety risks.
D.J. Excavation Inc. had been cited for allegedly violating workplace safety regulations when it excavated soil next to a tower crane base without first obtaining an engineer’s approval. The company was hit with compliance order #19628601 and administrative penalty #19628601-002 following the November 2024 incident.
The Director of Occupational Health and Safety argued that D.J. Excavation breached section 166(6) of the Occupational Safety General Regulations by failing to ensure adequate support for the crane structure. The regulation requires employers to ensure “a utility pole, building or other structure is provided adequate support or removed if the utility pole, building or other structure may become unstable because of the excavation or trenching activity.”
Standard excavation practices followed
D.J. Day, representing the company, maintained that proper excavation procedures were followed. The contractor testified that standard practice of maintaining a 1:1 slope when digging near structures was observed during the work.
The case centred on excavation work at what D.J. Day described as “the most significant excavation in the Halifax Regional Municipality.” The site was being prepared for two identical buildings at different elevations, with the tower crane positioned between the construction areas.
Three engineering reports were submitted as evidence, though none of the engineers testified at the hearing. The first report from April 2024 evaluated the excavation and preparation area, concluding that the “bearing surface meets the specifications” to “resist the anticipated structural loads.” A second report from May 2024 reviewed the crane base design, determining that “the crane base is fit for purpose and ready to receive the tower crane.”
Director’s position questioned
The Director argued that removing soil around the crane base constituted inadequate support and “may have” made the structure unstable. However, the Labour Board found this position lacked sufficient evidence.
Vice-Chair J.S. Matte noted that while the Director doesn’t need to prove the contractor’s actions actually destabilized the crane, there must be some evidence to support the claim that inadequate support was created. “A breach of s. 166(6) must be grounded in evidence, not simply on any possibility, no matter how unlikely, that a structure may become unstable,” the decision stated.
The board emphasized that the regulation’s use of “may” doesn’t equate to speculation without foundation. “Given that the Appellant excavated a proper 1:1 or greater slope, with the knowledge he had, the bare allegation that what he did ‘may’ have caused a problem, is not enough to trigger liability.”
Engineer’s post-incident report supports contractor
A November 2024 engineer’s report, prepared after the stop order was issued, confirmed the contractor’s approach was appropriate. This report made “no mention of dirt surrounding the crane providing support for the crane” and validated that maintaining a 1:1 slope is standard practice when excavating near structures.
The Labour Board found significant that neither the April nor May 2024 engineering reports mentioned any requirement to backfill around the crane base for stability purposes. Photos from the crane base construction showed the structure was not originally surrounded by compacted soil.
D.J. Day testified that dirt had been placed around the crane base because trucks were operating nearby, but this material was not compacted. A photograph showed loose soil “tumbling off the street side of the crane base.”
Different structures require different considerations
The decision distinguished between different types of structures when assessing adequate support requirements. The board noted that while a utility pole might rely primarily on surrounding soil for stability, a crane is “anchored to a cement base on top of a solid foundation.”
“What the adequate support may be for a crane, may not be the same as a utility pole or a wall,” the ruling stated. The board emphasized that adequate support must be evaluated based on the specific excavation and structure involved.
Officer B., who investigated the incident, acknowledged that cranes are designed to absorb forces and channel them downward through their base. While lateral forces can affect cranes, the board found that properly conducted excavation near a crane carries different risk levels than similar work around other structures.
Insufficient evidence for violation
The Labour Board concluded there was no evidence that the loose soil around the crane base contributed to the structure’s stability. The crane was positioned on an approved concrete base sitting on soil conditions that had received engineering approval.
“There is no evidence to support the Director’s conclusion that the dirt backfilled around the base was providing any form of ‘support’ to the crane base,” the decision stated.
The Director had suggested that simply contacting an engineer before excavation would have avoided the violation. However, the board found this argument speculative without evidence that such approval was necessary. The ruling noted that the engineer who approved the crane base would likely have been aware of the entire project scope, including the different building elevations requiring excavation.
The Labour Board set aside both the compliance order and administrative penalty, finding the Director failed to establish that D.J. Excavation’s actions created inadequate support for the tower crane structure.
For more information, see DJ Excavation Inc. (Re), 2025 NSLB 83 (CanLII).
