Previously, we discussed the  R v Greater Sudbury (City) [Greater Sudbury] decision from the Supreme Court of Canada (“SCC”) in which the SCC clarified the test for “employer” under the Occupational Health and Safety Act [OHSA] and held that the City of Greater Sudbury (the “City”) was an employer for the purposes of the OHSA.

The SCC remitted the matter back to the provincial offences appeal court to determine the outstanding issue of whether the City had acted with due diligence. On August 23, 2024, the Ontario Superior Court of Justice (the “ONSC” or the “Court”) released its decision on this issue and ultimately upheld the trial judge’s determination that the City exercised sufficient due diligence in the circumstances.

Background

In Greater Sudbury, the City contracted with Interpaving Limited (“Interpaving”) to act as a constructor to repair a water main. At trial, the City conceded that it was the owner of the construction project and had sent its quality control inspectors to oversee Interpaving’s compliance with safety requirements.

During the repair work, an employee of Interpaving struck and killed a pedestrian. A regulation that accompanies the OHSA, Construction Projects (the “Regulation”), required a fence to be placed between the construction work and the public intersection, as well as a signaller to assist the employee driving the construction vehicle. Neither of these requirements were enforced at the construction site.

Procedural History

As discussed in our previous blog, in a separate proceeding, Interpaving was convicted of breaching its own duty as an employer under the Regulation for failing to ensure that certain safety requirements were met. The City pled “not guilty” to the charges that it faced from the Ministry of Labour for various violations of the OHSA, and therefore the matter went to trial.

The trial judge held that the City was not an employer under the OHSA and acquitted the City by referencing its lack of direct control over the worker who caused the accident.

The provincial offences appeal court upheld this acquittal, but the Crown appealed this decision to the Ontario Court of Appeal (the “ONCA”). The ONCA allowed the appeal and held that the City was an “employer” for the purposes of the OHSA, setting aside the trial judge’s decision on the basis that the City’s control over the worker ought not to have been considered in determining their status as an employer. The City subsequently appealed the ONCA’s decision to the SCC.

The SCC upheld the ruling by the ONCA that the City was an “employer” for the purposes of the OHSA and had therefore breached its duty under section 25(1)(c) of the OHSA to ensure compliance with all applicable regulatory measures. In its analysis, the SCC addressed the City’s defence that it took all reasonable steps in the circumstances when considering the lack of direct control it had over the work. The SCC agreed that “control” was a relevant consideration, but remitted the matter back to the provincial offences appeal court for redetermination of whether the City exercised sufficient due diligence in the circumstances.

ONSC Decision

The ONSC upheld the trial judge’s decision that the City exercised sufficient due diligence in the circumstances. In its analysis, the Court considered the following four factors:

1. whether the City had control over the workplace and the workers on the work site;
2. whether the City delegated control to Interpaving to overcome its own lack of skill, knowledge, or expertise;
3. whether the City had assessed whether Interpaving had the capacity to perform the work and enforce compliance with the Regulation; and
4. whether the City monitored and supervised Interpaving’s work.

The Court, in line with the trial judge’s findings, held the following with respect to each of the four factors:

1. although the City did conduct quality control inspections to see if contractual requirements were being satisfied, the inspections were not considered to be “control” over the workplace and the workers on the work site;
2. the City lacked the skill, common knowledge, or expertise to complete the construction project in compliance with the Regulation, and therefore had paid for Interpaving to complete the project given its expertise;  
3. the City had used Interpaving on approximately 40 different projects within the five-year period preceding the fatality, and had required Interpaving employees to complete safety awareness training; and
4. the City did monitor and supervise Interpaving’s work, including by taking complaints from the public and making Interpaving aware of the concerns, raising concerns about signage and insufficient access to crosswalks for the public, and raised concerns about fencing.

Takeaways

We previously outlined key considerations from the SCC’s decision in Greater Sudbury.The ONSC provided greater clarity on the factors that a court may consider when determining what an “owner” or “employer” of a construction work site or project must do to demonstrate that it exercised due diligence in the circumstances. 

Importantly, employers should bear in mind that performing quality control inspections at a workplace or work site does not necessarily amount to having “control” over a workplace or work site for the purposes of the OHSA. Furthermore, in circumstances where an employer or site owner hires a general contractor to perform work on a project or work site, employers should consider implementing the following practices to demonstrate the exercise of due diligence:

• Consider whether the employer has sufficient skill, common knowledge, or expertise to complete the project or work in question, and if not, to consider hiring another individual or employer who has the requisite knowledge or skills to perform the work.
• Assess whether the individual or entity performing the work has the capacity to perform the work and enforce compliance with health and safety legislation and regulations.
• Even if the employer is not physically present at the work site daily, it is crucial to monitor and supervise the work on a regular basis, and to raise any concerns about the safety of the worksite to the employer responsible for completing the work.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.