SUPREME SURPRISE

LEGAL
SUPREME SURPRISE
Greater Sudbury decision reveals potential risks for project
owners associated with different project delivery models
by Jesse Gardner and Nicholas Reynolds
UCH HAS BEEN WRITTEN about the Supreme Court of
Canada’s decision in R. v. Greater Sudbury (City),
and its implications for project owners with
respect to their occupational health and safety
obligations. Below, we consider the practical
implications of what the Greater Sudbury decision
may mean for owners under di昀昀erent project models.
M
Factual background
The City of Sudbury contracted with Interpaving Limited
to repair a watermain and act as constructor under Ontario’s Occupational Health and Safety Act (OHSA) in performing its work. Contrary to OHSA, Interpaving failed to
place a fence between the project site and the intersection,
and failed to ensure that a signaller was in place.
An Interpaving employee struck and killed a pedestrian
when driving a grader through an intersection. The Ministry of Labour charged Sudbury under s. 25(1)(c) of the
OHSA as both a constructor and an employer for failing to
ensure Interpaving’s compliance with OHSA.
Sudbury conceded it was the owner and acknowledged that its quality control inspectors were sent to site
to ensure Interpaving’s compliance with their contract.
However, Sudbury denied that it was either a constructor
or an employer under the OHSA, on the basis that it had
delegated control to Interpaving.
Jesse Gardner
Jesse Gardner is
a Partner in the
Construction and
Infrastructure Pract
ice Group at Singleton
Urquhart Reynolds
Vogel LLP.
Nicholas Reynolds
Nicholas Reynolds is
an Associate in the
Construction and
Infrastructure Law
Group at Singleton
Urquhart Reynolds
Vogel LLP.
32
The Supreme Court’s decision
In its decision, the SCC observed that the OHSA is a public
welfare statute that is remedial in nature, and one which
is meant to ensure a minimum level of worker protection,
as a result of which it must be interpreted liberally to promote health and safety. The OHSA promotes health and
safety by allocating duties amongst multiple parties, such
that these duties overlap (rather than one entity being
responsible). The failure of one health and safety system is
not necessarily fatal, to the extent that another system or
entity may pick up the slack. As a result, multiple entities
may be accountable for OHSA breaches, and they cannot
use others’ failures as an excuse.
The Ministry was not required to demonstrate that Sudbury had exercised control over the workers or workplace
to establish a breach, given that a breach of s. 25(1)(c) is a
strict liability o昀昀ence. The Court observed that a review of
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OHSA demonstrated legislative intent
to focus on the employer’s connection
to the workplace, rather than control
over the workplace or workers. The
Court found that the de昀椀nition of
“employer” under the OHSA did not
include any reference to a “control”
requirement, which absence the Court
concluded was indicative of the legislature’s intent not to make the de昀椀nition of “employer” contingent on such
a factor. By referring to a contract for
services in the de昀椀nition of “employer”, the OHSA contemplated an employer-independent
contractor relationship as falling within the de昀椀nition.
Turning to the issue of due diligence, the Court noted
that the presence of a due diligence defense was signi昀椀cant
insofar as it allows “employers” who breach section 25(1)(c)
of the OHSA to avoid penalties if they can demonstrate that
they took “all reasonable steps” to prevent the breach. Here,
an employer could argue that its lack of control over the
workplace or workers (i.e. through delegation to another
entity) could constitute evidence that it took “all reasonable
steps” to satisfy its due diligence obligations.
Analysis of the due diligence issue would require consideration of (1) the accused’s degree of control, (2) whether
they delegated control to the constructor in an e昀昀ort to
overcome their own lack of skill, knowledge or expertise,
(3) whether the accused took steps to evaluate the constructor’s ability to ensure compliance with OHSA before
deciding to delegate, and (4) whether the accused e昀昀ectively monitored/supervised the constructor’s work.
In this case, Sudbury was an employer of both (1) the
quality control inspectors it dispatched to the project site,
and (2) Interpaving. Therefore, Sudbury was obligated to
ensure OHSA-prescribed procedures were implemented
at the worksite, such that the failure to implement safety
measures meant that Sudbury committed an o昀昀ence under
section 25(1)(c). As noted above, Sudbury’s control (or lack
thereof) would go to the issue of due diligence (which was
referred back down to the Superior Court). This decision
may cause concern and uncertainty for owners. Owners,
particularly on public projects, often seek experienced
contractors to provide expertise in compliance with occupa-
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