In R. v. Sudbury Greater Sudbury (City)[1], the Supreme Court of Canada expanded a property owner’s potential legal liability with respect to a construction project at its property, four justices finding that a property owner can breach its obligations as an “employer” under Ontario’s Occupational Health and Safety Act (the “OHSA”) even where another party has expressly agreed to be the constructor pursuant to a written agreement with the property owner.
Facts
The Corporation of the City of Greater Sudbury (the “City”) contracted with Interpaving Limited (“Interpaving”) to repair a downtown watermain. More specifically, the City agreed with Interpaving that Interpaving would act as “constructor” and would assume control over the entire project, as well as ensuring requirements of the OHSA were met. During the work, an Interpaving employee struck and killed a pedestrian while driving a road grader in reverse through an intersection. At the time of the incident, contrary to O. Reg. 213/91 (Construction Projects) (the “Regulation”), no signaler was assisting the Interpaving worker and there was no fence in place between the construction project and the public intersection. Prior to the incident, two City quality control inspectors had visited the project site to inspect workmanship.
Clause 25(1)(c) of the OHSA requires that an employer ensure that “the measures and procedures prescribed are carried out in the workplace.” As a strict liability offence, this section is breached by an employer if safety measures prescribed in the Regulation are not carried out. There is a statutory defence of due diligence in clause 66(3)(b) of the OHSA available to those accused under clause 25(1)(c), which requires that the accused prove on a balance of probabilities that every precaution reasonable in the circumstances was taken.
The Ontario Ministry of the Attorney General (Ministry of Labour, Training, Skills and Development) (the “Ministry”) charged both the City and Interpaving. The City was charged under OHSA for alleged breaches of sections 65, 67(4), and 104(3) of the Regulation. Due to prior judicial determinations, the Supreme Court of Canada only considered the City’s alleged status as an “employer” and its liability under clause 25(1)(c) of the OHSA for its alleged breaches of sections 65 and 104(3) of the Regulation.[2] In its role as constructor, Interpaving was found guilty in separate proceedings.
The City conceded that it was the owner of the construction project and that it sent quality control inspectors to the project, but the City denied that it was an employer, arguing that the City lacked control over the repair work that had been delegated to Interpaving.[3]
The trial judge held that the City was not liable as, among other things, an employer and, alternatively, that even if the City were considered an employer, the City had established the due diligence defence. The provincial offences appeal court upheld the trial decision and did not address whether the City had acted with due diligence.[4] The Ontario Court of Appeal heard an appeal on certain issues and found the City to be an employer under the OHSA due to the City’s employment of the inspectors.[5] The Ontario Court of Appeal concluded that it was not necessary to consider whether control is an element of the definition of “employer” where a municipality contracts work to a third party. The Court of Appeal remitted the matter to the provincial offences appeal court to determine whether the City had exercised due diligence and/or the City’s appropriate penalty or sentence.[6]
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