On August 23, 2024, the Ontario Court of Justice upheld the trial Court’s original acquittal of the City of Sudbury (the “City”) in R v Greater Sudbury (City), 2024 ONSC 3959. In dismissing the Crown’s appeal of a decision rendered by the Court in 2018, the Court held that the City had established a due diligence defence in relation to a fatal injury that occurred on a City-owned construction site.
The accident occurred in 2016 when an employee of Interpaving Limited (“Interpaving”), a contractor hired by the City, struck and fatally injured a pedestrian while reversing a road grader into an intersection.
This decision of the Ontario Court of Justice comes after the Plurality of the Supreme Court of Canada (the “SCC”) in R v Greater Sudbury (City), 2023 SCC 28, found that the City was an “employer” [as that term is defined under Ontario’s Occupational Health and Safety Act (“Act”) and its Regulations] despite its lack of control over the Interpaving employee. In short, the Plurality opined that an “employer” should be broadly interpreted and that all employers on a project site should have responsibility for ensuring every other employer’s compliance with the Act and its Regulations.
Conversely, the dissenters would take a more constrained view since defining an “employer” in such a broad manner would “effectively mean that everyone who employs anyone is responsible for everything that anyone does” and that “… holding employers with no control liable does nothing to increase worker safety.”
The SCC remitted the matter to the Ontario Court of Justice to consider whether the City had exercised due diligence as an “employer” of Interpaving’s employees. More information on the SCC’s decision is available in our previous blog.
Ontario Court of Justice decision
The sole issue to be determined by the Ontario Court of Justice was whether the trial judge had committed a palpable and overriding error by finding that the City had exercised the due diligence required of a project owner with “employer obligations.”
In determining the issue, the Court posed the following questions:
- Did the City have control over the workplace and the workers on it?
- Did the City delegate control to Interpaving to overcome its own lack of skill, knowledge or expertise?
- Did the City evaluate whether the potential constructor had the capacity to perform the work and enforce compliance with the Act and its Regulations?
- Did the City monitor and supervise the constructor’s work?
In this case, the City’s contract with Interpaving stipulated that Interpaving would assume control over the entire project, including the assumption of the role of “constructor” (or “prime contractor”) under the Act. It was noted that although the City conducted quality control inspections to ensure contractual requirements were satisfied, that such inspections did not constitute control over the work site and the workers in it.
The City was found to have delegated the responsibility for safety to Interpaving and had taken reasonable steps to monitor the project. The Court cited testimony from a City employee which emphasized that the City had hired Interpaving as a “constructor” due to their own lack of skill, common knowledge or expertise to complete the project in accordance with the Act and Regulations. Cornell J. commented that “the City had paid a premium to Interpaving as Interpaving had the expertise the City lacked” (at para 29). It was also noted that Interpaving had been hired by the City for approximately 40 projects in the five years leading up to the accident. Finally, the City supervised and monitored Interpaving’s work by making Interpaving aware of concerns received from the public and attending periodic progress meetings.
In dismissing the appeal, the Court commented that the Crown had taken great pains to point to instances where the City may have overstepped its role as owner to frame the City as exercising control over the project:
[35] If the City had exercised the amount of control over the project that was urged by the [Crown], the City would have been a constructor, something that has been rejected at every level of appeal. I agree with the observation made by Poupore J. in the initial appeal to this court that the [Crown] has attempted to put the “project under a microscope” in order to bring about its objective. See R. v. Greater Sudbury (City), 2019 ONSC 3285, at para. 31.
The Ontario Court of Justice ultimately concluded that the trial judge had not committed a palpable and overriding error when she concluded that the City had acted with due diligence.
Key takeaways
This decision is a reminder of the importance of due diligence in ensuring safety on project sites. In assessing due diligence, owners of project sites should ensure they have (i) appropriate measures in place to evaluate contractors’ safety programs for compliance with OHS legislation and regulations prior to contracting with them; (ii) create systems to effectively monitor contractors’ work to ensure that the contractors are performing the work safely and in compliance with appropriate safety systems; and (iii) and create systems to enforce safety requirements at their workplaces or work sites. In addition, when an owner retains a contractor and delegates control to that contractor in order to overcome its own lack of experience, the delegation of that control should be set out in writing and the owner should ensure that all contractors on or near the project are well-aware of the delegation of control.
The MLT Aikins Occupational Health and Safety (OHS) practice group has considerable experience in helping employers, contractors and owners design legally compliant due diligence and compliance programs in the safety and construction context. Our OHS practitioners also have significant experience representing companies that have suffered an incident on the work site or prosecuted as a result of such an incident. Please contact our OHS team for more information.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.