Under the Occupational Health and Safety Act [OHSA], employers have a duty to ensure that health and safety measures are implemented and carried out in the workplace. In scenarios where third-party contractors perform work for the owner of a construction site, there is uncertainty around whether the owner meets the definition of “employer” under the OHSA.
In R v Greater Sudbury (City) [Greater Sudbury], the Supreme Court of Canada (“SCC” or the “Court”) clarified the test for “employer” under the OHSA, and ultimately held that the Corporation of the City of Greater Sudbury (the “City”) was liable as an employer under the OHSA. The Court held that the degree of control exercised over employees is not relevant in determining whether a construction site owner is an “employer” under the OHSA, and therefore held that the City was an employer in this case. Nevertheless, the SCC clarified that “control” remains a relevant factor to assess liability under the OHSA when establishing that an employer exercised due diligence.
In Greater Sudbury, the City contracted with Interpaving Limited (“Interpaving”) to act as a constructor to repair a water main. The City conceded that it was the owner of the construction project and had sent quality control inspectors to oversee Interpaving’s compliance with safety requirements.
During the repair work, an employee of Interpaving struck and killed a pedestrian when they drove a construction vehicle, in reverse, through an intersection. A regulation that accompanies the OHSA, Construction Projects, 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 adhered to at the construction site.
In a separate proceeding, Interpaving was convicted of breaching its own duty as an employer under the Construction Projects regulation for failing to ensure that certain safety requirements were met. At issue in Greater Sudbury was whether the City would also be liable for breaching this same duty as another employer.
Originally, the trial judge held that the City was not an employer under the OHSA and accordingly acquitted the City by referencing its lack of direct control over the worker who caused the accident. While the provincial offences appeal court first upheld the trial judge’s decision, the Ontario Court of Appeal (the “ONCA”) set that decision aside on the basis that the City’s control over the workers ought not to have been considered in determining their status as an employer. The City appealed the ONCA’s decision to the SCC.
Was the City an employer under the OHSA?
The SCC dismissed the City’s appeal and held that the City was an employer under the OHSA.
Despite owning the construction project and sending quality control inspectors to oversee Interpaving’s compliance with safety standards, the City argued that it should not be considered an employer of the worker who caused the accident. Specifically, the City argued that its lack of control over the repair work and the fact that it delegated control to Interpaving were relevant considerations to this issue.
The Court outlined the test for an employer under the OHSA and stated that a construction site owner will be an employer if they i) employed workers at a workplace where an alleged breach of the OHSA occurred, or ii) contracted for the services of a worker at that workplace. Notably, a site owner need not exercise any degree of control over workers to be considered an employer under OHSA.
As such, the Court held that the City was an employer of the inspectors it directly employed, as well as an employer of Interpaving’s workers. Accordingly, the City had a duty under the OHSA to ensure that the safety requirements were adhered to in the workplace.
Did the City violate the OHSA?
The Court stated that section 25(1)(c) of the OHSA requires an employer to ensure compliance with all applicable regulatory measures, and that this requirement is not dependent on relative degrees of control over the work performed. As safety requirements under the Construction Projects regulation were not adhered to, the City breached their OHSA duty as an employer.
The City defended its breach of the OHSA by arguing that it exercised due diligence. Specifically, the City argued that it took all reasonable steps in the circumstances when considering the lack of direct control it had over the workers. The Court agreed that control is one of several relevant considerations at this stage of the analysis and sent the matter back to the provincial offences appeal court for redetermination on the issue of whether the City exercised sufficient due diligence in the circumstances.
Given the fact that Greater Sudbury was a rare 4-4 split decision of the SCC, the test to determine an employer under the OHSA has an increased likelihood of being revisited by the SCC than would otherwise be expected. Nonetheless, until the issue is retried, the Court’s decision leaves site owners with important considerations:
- As opposed to the common law definition of an employer, site owners could be held liable under the OHSA for accidents on a worksite that are caused by a worker over whom the owner does not have direct control.
- When claiming that they acted with due diligence, employers charged with violating strict liability offences under the OHSA can still avoid liability by relying on the limited degree of control they exercised over an employee. This is relevant for all employers under the OHSA, and is not limited to owners.
- Employers should confirm that third-party contractors follow their own health and safety protocols that comply with regulatory standards.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.