Under Ontario’s Occupational Health and Safety Act (“OHSA”), participants in the construction industry are regulated under the following primary categories, each with a specific set of legal obligations:
- Owner: the actual owner of land to be used as a workplace, or their representative
- Constructor: typically, a general contractor, but this also includes an owner who undertakes a construction project itself or by hiring more than one employer to do so
- Employer: someone who either employs or contracts for the services of a worker, as well as a contractor or subcontractor who performs work or supplies services
- Supervisor: a person who has charge of a workplace or authority over a worker
- Worker: anyone who performs work or supplies services for pay, as well as some unpaid learners
Historically, the duties of an Owner have been quite limited; being required simply to identify and list any designated (i.e. hazardous) substances on site, and to ensure that list is provided to those who will work on their project. The owner’s easy ride was offset on the other side of the equation by having the lion’s share of responsibility fall on the other workplace parties referred to, with constructors having an overarching responsibility to ensure safety compliance.
And then in 2021, everything changed. To the surprise of many, the Ontario Court of Appeal found that the City of Sudbury, as an owner, could also have a second hat, that it never thought it had put on.[1] Simply by virtue of having its inspectors on a construction job site for quality control and to monitor job progress, the City was found to have been an employer for purposes of the OHSA, which meant that it could be convicted of failing to ensure that the required safety measures and procedures were carried out on the site.
To the surprise of no one, the City appealed.
On November 10, 2023, the Supreme Court of Canada (SCC) released its decision in R. v. Greater Sudbury (City), 2023 SCC 28. In a rare 4-4 split decision (one of the original 9 judges having resigned), the tie vote at the SCC left the Ontario Court of Appeal’s decision undisturbed, albeit with somewhat more far-reaching reasons. This ruling, now from our highest court, increases the risk of legal exposure for owners of construction projects, who may be liable for health and safety matters over which they have no practical degree of oversight or control on a day-to-day basis.
BACKGROUND FACTS
The City of Greater Sudbury (the “City”) had hired Interpaving Limited (“Interpaving”) as a general contractor to carry out a construction project involving road and watermain repairs. As such, Interpaving became the “constructor” and assumed responsibility for OHSA compliance over the entire project. The City’s ongoing role was simply sending quality control inspectors to the job site to monitor and oversee the progress of Interpaving’s work. The City had no employees performing construction work, nor did these employees appear to have any effective authority to direct Interpaving in its application of safety rules at the job site under the OHSA.
In September 2015, a pedestrian was struck and killed on this job site by a road grader operated by an employee of Interpaving. The Ministry of Labour investigated and charged both the City and Interpaving with multiple health and safety violations. The City was charged, both as a “constructor” and an “employer” under the OHSA. The charges included failing both to have a fence in place to separate pedestrians from the construction equipment and to have a signaller for the grader operator.
Interpaving pled guilty to the charges and was fined $195,000 plus a 25% victim surcharge. In contrast, the City was acquitted at trial on the basis that it was neither a constructor nor an employer and so owed no duties under the OHSA. The Crown subsequently appealed that decision up to the Ontario Court of Appeal (the “ONCA”).
COURT OF APPEAL DECISION
The ONCA ruling under appeal was a rather straightforward one. Based on its 1992 decision in the case of R. v. Wyssen[2], the Court confirmed that a party is an “employer” under the OHSA if it has workers who are directly employed or engaged by contract. It applied this broad concept of an “employer” to determine that the City’s employment of quality control inspectors on site brought it within the definition of “employer”. As such, it was responsible for ensuring compliance on the project with the OHSA and its regulations.
The ONCA did not decide whether it was necessary to demonstrate that “control” over Interpaving’s work was required in order for the City to be an employer on the project; the presence of its employees was sufficient for that. Control, along with “due diligence” (the City’s actions to ensure compliance with the OHSA), had not been adequately considered in the courts below.
