SCC Split Rules Owners Liable as Employers under the Occupational Health and Safety Act

  • August 22, 2024
  • Felisia Milana of Stieber Berlach

Introduction

Municipalities are being kept on their toes with the recent Supreme Court of Canada (“SCC”) decision in R v Greater Sudbury (City).[1] The SCC held that owners of a construction project fall within the definition of an “employer” under the Occupation Health and Safety Act (“OHSA”)[2] and are subject to the required duties and liabilities of an employer.

Moving forward, municipalities will have a difficult time insulating themselves from liability under the OHSA when contracting out services.

Overview

In May 2015, the City of Greater Sudbury (“City”) contracted with Interpaving Limited (“Interpaving”), a general contractor, to complete water main repairs in downtown Sudbury.[3] According to the contract, Interpaving agreed to serve as the “constructor” for the project and maintained control over day-to-day management. Quality control inspectors were hired by the City to occasionally observe the construction site and workers.[4]

In September 2015, a pedestrian was fatally struck by an Interpaving employee driving a road grader in reverse through an intersection.[5] As a result of the accident, the City and Interpaving were charged by the Ministry of Labour for violating the OHSA.

Interpaving was tried and convicted for breaching the duty of employers under s. 25(1)(c) of the OHSA.[6] The City denied that it was an employer and took the position that it could not be held liable under the OHSA because the City had delegated control of the repair work to Interpaving.[7]

The question of whether the City had a statutory liability as an employer under the OHSA lay at the heart of the appeal.[8] Both the Ontario Court of Justice (“OCJ”) and the Superior Court of Justice (“SCJ”) held that the City was not an employer under the OHSA.[9] The Ontario Court of Appeal (“ONCA”) unanimously overturned the verdicts of the OCJ and SCJ.[10] The ONCA found that the City was an employer under the OHSA and had a duty to ensure that the provisions and regulations of the OHSA were carried out at the workplace.[11] In a 4-4 decision, the SCC upheld the decision of the ONCA and dismissed the appeal.