On November 10, 2023, the Supreme Court of Canada rendered its much-anticipated decision in the matter of R. v. Greater Sudbury (City). The decision is noteworthy in its expanding, in a significant way, the health and safety obligations of an “owner” of a construction project under Ontario’s Occupational Health and Safety Act, R.S.O., 1990, c. O.1 (“OHSA”). The decision further clarifies the test for determining who is an “employer” under the OHSA and comments on how a company’s control of a project worksite will be assessed when determining compliance with legislative obligations.
Going forward, an owner can no longer insulate itself from potential liability under the OHSA. Instead, an owner is well-advised to conduct careful and complete due diligence when selecting a general contractor, and properly managing its own actions as it relates to supervision and inspection of the contractor’s activities at the construction project site.
By way of background, the City of Sudbury, as the project owner, contracted with a general contractor to repair a downtown watermain, as the project’s “constructor”. As commonly done by project owners, the City monitored the project quality and contract compliance through the hiring of “quality control” inspectors sent to the project. In September 2015, a pedestrian, who was crossing at a traffic light, was tragically struck and killed by a road grading machine operated by an employee of the general contractor. A subsequent investigation by the Ontario Ministry of Labour (“MOL”) resulted in various charges under the OHSA against the general contractor and against the City of Sudbury, who was the project owner.
More particularly, the City of Sudbury was charged for breaching its obligations as a “constructor” under the OHSA, and breaching its alleged obligations as an “employer” under the OHSA.
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