The Ontario Superior Court of Justice recently provided insight into what steps an owner must take to establish a defence of due diligence and avoid liability under the Ontario Occupation Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”).
Last year, the Supreme Court of Canada greatly expanded the legal liability of owners who engage a constructor on their project in the decision of R v Greater Sudbury (City), 2023 SCC 28. The Supreme Court ruled that owners who engage a “constructor” are “employers” under the OHSA and, therefore, are liable for all health and safety violations that occur throughout the course of a project.
The Supreme Court held that owners could avoid liability under the OHSA by demonstrating due diligence. While the Supreme Court identified principles for lower courts to apply as part of the due diligence analysis, the Court ultimately remitted to the lower court the question of whether the City of Greater Sudbury (“City”) acted with due diligence.
The Superior Court’s recent decision in R v Greater Sudbury (City), 2024 ONSC 3959, which applies the principles identified by the Supreme Court, provides important insight as to how courts in Ontario will assess whether an owner has acted with due diligence under the OHSA. The Superior Court confirmed the trial decision of the Ontario Court of Justice that the City acted with due diligence.
Factual background
The City contracted Interpaving Limited (“Interpaving”) to repair a watermain. The construction contract provided that Interpaving would assume control over the entire project, including the role of “constructor” under the OHSA. The City also contracted quality control inspectors to ensure the work was performed in accordance with the construction contract.
An Interpaving employee struck and killed a pedestrian. No fence was erected between the project and public intersection and no signaller was on site as required by Construction Projects, O. Reg. 213/91 (the “Regulation”).
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