Owners need to be diligent about safety: The Supreme Court of Canada releases its much-anticipated decision in R. V Greater Sudbury (City)

Key Takeaway

An owner may have the responsibilities (and corresponding liabilities in the event of an accident) of an “employer” under Ontario’s Occupational Health and Safety Act (“OHSA”), even when the owner has retained a contractor to perform the actual work. This can be true even where the owner does not have direct control of the work, but this element of control may be relevant to the owner’s “due diligence” to argue that it took all reasonable steps in the circumstances.

Background

On November 10, 2023, the Supreme Court of Canada released its much-anticipated decision in the appeal of R. v Greater Sudbury (City), 2023 SCC 28. This case stems from an accident where an employee of Interpaving Limited, a contractor performing repair work on a watermain for the City of Sudbury (the “City”), fatally injured a pedestrian while reversing a road grader into an intersection. No fencing or hoarding was placed at the location of the accident and there was no signaller present to assist the machine operator or direct pedestrians.

Previous Court Decisions

The appeal to the Supreme Court of Canada centred around the City’s liability under OHSA and the OHSA regulations. The City was initially charged for breaching its duty as an “employer” under OHSA. At trial, the City was acquitted because the judge determined the contractor to have direct control of the work and accepted the City’s “due diligence” defence that it had taken every reasonable precaution in the circumstances.

The trial decision was upheld on the first appeal but was reversed on the second appeal to the Court of Appeal for Ontario. The Court of Appeal found the City liable as an “employer”, deciding that the City did not necessarily have to be in direct control of the work for it to be liable under OHSA. The Court of Appeal also required the trial court to determine the City’s “due diligence” defence in light of the determination that the City was, in fact, an “employer” under OHSA.

The Supreme Court of Canada’s Decision

The case was then appealed again to the Supreme Court of Canada, which confirmed that the City has the obligations of an “employer” under OHSA and that the City breached its duty as an employer to ensure that the proper health and safety measures and procedures are carried out in the workplace. The court stated that requiring an element of control over the work would undermine the purpose of the OHSA legislation, which is to protect workers and members of the public. This public welfare purpose often results in overlap with multiple parties being responsible for protective measures, including both owners and contractors.

However, the court also held that the element of control can be relevant in the context of the “due diligence” defence (i.e. to show that the City did not have control over the work and that it took all reasonable steps in the circumstances). The Court returned the issue of the “due diligence” to the trial court for determination.