Fridays with Rogers Partners

At our weekly meeting, Eli Feldman discussed the recent rare split decision of the Supreme Court of Canada (the “SCC”) in R. v. Greater Sudbury (City), 2023 SCC 28, a case that dealt with a fatal accident and the proper interpretation of Ontario’s Occupational Health and Safety Act (the “OHSA” or the “Act”).

Facts

In 2015, the City of Sudbury (the “City”) contracted with Interpaving Limited (“Interpaving”) to repair a water main and repave affected streets in the City (the “Project”). During the Project, a pedestrian was struck and killed by an Interpaving employee who was driving a road grader, in reverse, through an intersection. Contrary to the OHSA, no fence was placed between the construction site and the public intersection, and no signaler was assisting the Interpaving worker at the time of the accident.

Issue

The central issue in this case was whether the City was liable as an employer for breaching s. 25(1)(c) of the OHSA, which requires employers to “ensure that…the measures and procedures prescribed [in the Act] are carried out in the workplace.”

Section 1(1) of the OHSA defines an employer as a person who “employs or contracts for the services of one or more workers…”.

The City agreed that it was the owner of the Project, but denied that it was an employer pursuant to the OHSA because it lacked “control” over the repair work, and had delegated control to Interpaving.

Procedural History

At first instance, the trial judge acquitted the City. In her view, Interpaving, not the City, had control over the workers and the intersection, meaning that the City was not an employer under s. 1(1) of the Act. In the alternative, the trial judge accepted the City’s due diligence defence. In other words, she held that even if the City had breached its obligations as an employer, the City took every reasonable precaution in the circumstances.

The provincial offences appeal court dismissed the Crown’s appeal, but did not address the trial judge’s conclusion on the City’s due diligence defence.

The Ontario Court of Appeal (the “ONCA”) unanimously allowed the Crown’s appeal and set aside the decision of the provincial offences appeal court. In its decision, the ONCA applied a definition of “employer” that it had established in a previous decision (R. v. Wyssen, 1992 ONCA 7598), which excluded the control requirement. As such, the ONCA held the City liable as an employer under s. 25(1)(c) of the OHSA, and returned the issue of the City’s due diligence defence to the provincial offences appeal court for consideration.

The City then appealed to the SCC for a final word on whether it was an “employer” pursuant to the OHSA,despite lacking control over the project.

Supreme Court of Canada

Justice Martin, for the four-Justice majority, held that the City was an employer of Interpaving and, therefore, breached its duty under s. 25(1)(c) of the Act. In her reasoning, Justice Martin noted that nothing in the text, context, or purpose of the OHSA requires the Crown to prove that the City had “control” over the Interpaving workers to prove that the City breached its OHSA obligations. Justice Martin adopted a broad and liberal interpretation of the OHSA with the following language:

“[D]iminishing an employer’s duties by reading in a control requirement… would thwart the purpose of this remedial public welfare legislation.”

Despite this finding, Justice Martin acknowledged that the presence of “control” is relevant to the applicability of the due diligence defence. In her view, it is open to an accused to argue that an absence of control suggests that the accused took all reasonable steps in the circumstances.

Accordingly, Justice Martin dismissed the City’s appeal and relegated the matter back to the provincial offences appeal court for a determination on the due diligence offence issue. We will await this determination together.

Conclusions

Ultimately, R. v. Greater Sudbury (City) underscores that owners of major construction projects have significant legal responsibilities to ensure health and safety compliance, both in Ontario and other jurisdictions with comparable health and safety legislation. Indeed,this casesends a clear message to construction site owners across the country: even if you pass the torch, there is still a chance you get burned.