In R. v. Greater Sudbury (City), 2023 SCC 28, in a split decision, the SCC has held that an owner, the City of Sudbury, which had contracted with a third party constructor to undertake a construction project, still retained overlapping duties as an "employer" to ensure worker health and safety in the workplace in accordance with the Ontario Occupational Health and Safety Act (the "OHSA").
The SCC concluded that the degree of control exercised by the City over the work being performed on the construction project was not relevant to a determination of whether the City was an "employer" under the OHSA or whether it violated the provision of the OHSA requiring an employer to ensure that prescribed measures and procedures are carried out in the workplace. Rather, the SCC held that such control is only properly considered in determining whether an employer, such as the City, has made out a due diligence defence, which it characterized as a potential "safety valve" for owners of projects to avoid liability for non-compliance with the OHSA on the project.
Overview of OHSA Regime for Constructors
The OHSA defines various workplace parties and sets out the duties and responsibilities of each of those parties to protect the health and safety of workers in the workplace. A "workplace" is defined in the OHSA as "any land, premises, location or thing at, upon, in or near which a worker works."1 One such defined workplace party is an "employer", who has a duty under the OHSA to ensure the health and safety of its workers. An employer is defined as meaning:
a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services.2 [emphasis added]
As the wording of the definition of employer clearly states and as the courts have consistently held, the employer's duties and responsibilities to protect worker health and safety extend not just to its own employees but also to third party contractors with whom the employer contracts to provide services.3 This extended definition of employer applies to various kinds of employment and employer-contractor arrangements in a variety of workplaces, both in construction and non-construction contexts.
While the OHSA does not allow a workplace party to contract out of or otherwise delegate its statutory duties under the OHSA, where there is a construction "project", the OHSA carves out a special regime that allows an owner of a construction project to relinquish overall responsibility for health and safety on the project to a designated "constructor".4 A "Constructor" is defined by the OHSA to mean "a person who undertakes a construction project for an owner and includes an owner who undertakes all or part of a project by himself or by more than one employer".5
Section 23 of the OHSA sets out the overarching nature of responsibilities of a constructor to ensure health and safety on a construction project:
23 (1) A constructor shall ensure, on a project undertaken by the constructor that,
(a) the measures and procedures prescribed by this Act and the regulations are carried out on the project;
(b) every employer and every worker performing work on the project complies with this Act and the regulations; and
(c) the health and safety of workers on the project is protected.6
When an owner sends its workers to perform work on the construction project, the owner would be considered to have duties and responsibilities under the OHSA as an "employer" to protect the health and safety of those workers. However, as long as the owner does not start to undertake all or part of the project (by, for example, directing work on the project) such an employer would not fall within the definition of the constructor and so would not assume general duties to ensure the health and safety of other workplace parties performing other work on the project more broadly. Rather, such general duties would be the responsibility of the designated constructor and, depending on the circumstances, the constructor's duties would overlap with the more specific duties of other employers and workers directly engaged in that other work. In addition, s. 1(3) of the OHSA expressly provides that an owner does not become a constructor simply by virtue of engaging persons to oversee quality control at a project.7
It is settled law that offences under the OHSA are strict liability offences. Accordingly, when a workplace party, such as an employer, owner or constructor, is charged with violating a provision of the OHSA, the Crown does not have to prove intent. The Crown merely has to prove beyond a reasonable doubt that all of the elements of the offence have occurred in order to ground a conviction. However, if an accused can establish, on a balance of probabilities, that it took all reasonable care in the circumstances to prevent the commission of the offence or that it had an honest but mistaken reasonable belief in facts which, if true, would render its conduct innocent, then the accused will have a complete defence and will be acquitted. This is widely referred to as the "due diligence defence."
Facts of the Case
This case arose following a tragic pedestrian death during a construction project in the City of Greater Sudbury (the "City"). The City hired Interpaving Limited ("Interpaving") to repair a water main (the "Project").
The contract for the Project between the City, as owner, and Interpaving, as the general contractor, specified that Interpaving was undertaking the repair work and would assume the role of "constructor" under the OHSA and would be responsible for ensuring the project met the requirements of the OHSA. This was a typical contractual arrangement on construction projects. Interpaving filed a Notice of Project with the Ministry of Labour, Immigration, Training, and Skills Development (the "Ministry") identifying itself as the constructor.
Interpaving began work on the Project in May 2015. During the Project, the City employed inspectors to attend the job site for quality assurance purposes, to monitor the progress of work, and to confirm the work being performed was consistent with the contract. Inspectors did not direct work, and were themselves required to follow Interpaving's job site health & safety requirements.
On September 30, 2015, a road grader employed by Interpaving struck a pedestrian while she was walking through the live intersection where the grader was working (the "Accident"). Police did not control the intersection, there were no signalers, and the job site lacked a 1.8m barrier fence, all of which were required by the contract. Two weeks prior, City inspectors attending the site had observed a lack of police officers, and noted that it did not reflect compliance with the contract. Interpaving stopped the work until paid duty police officers could be arranged.
In practice, requests for paid duty police officers to direct traffic were made by Interpaving to the City, which then forwarded the request on to the City police department to organize. The Ministry formed the view that the City's role as a conduit for paid duty police requests rendered the City the project's "constructor" and ordered it to file a Notice of Project. The order was appealed, and subsequently suspended pending the outcome of the ensuing OHSA prosecution.
The Ministry charged the City and Interpaving with violations of O. Reg. 213/91: Construction Projects (the "Regulation"), contrary to the OHSA s. 25(1)(c) which requires employers to ensure that the measures and procedures prescribed are carried out in the workplace. The Ministry charged the City on the basis that it acted as both "constructor" and "employer" under the OHSA with respect to the Project.
Interpaving pleaded guilty, but the City proceeded to trial.
There were three issues at trial:
- Whether the City was a "constructor" under the OHSA for the Project;
- Whether the City was an "employer" under the OHSA; and,
- If the City was an "employer" / "constructor", whether it had exercised due diligence to avoid the breaches of the OHSA.
Justice Lische, the trial judge, found that, while there were safety defects on the Project, the City could not be convicted, as it was neither a constructor nor an employer on the Project. Further, even if it had filled either role, it had exercised due diligence. The City was acquitted.
The trial judge held that Interpaving had actual, factual control and direction of the Project, and that at no time had the City assumed the role of constructor or assumed control of the Project.
In so finding, the trial judge rejected the Ministry's argument that steps the City took in administering the Project made the City a constructor, including: (i) being a conduit for Interpaving's paid duty police officer requests, (ii) the existence of (unexercised) contractual provisions that would allow the City to assume the role of Constructor or suspend work on the Project, (iii) City-imposed hazard orientation training requirements for workers, (iv) the City's periodic use of a trailer on the Project site, (v) the City modifying the scope of the Project mid-contract, and (vi) the City's regular review and comment on Interpaving's contract compliance.
In finding that the City was not an "employer" under the OHSA, the trial judge referred to the Supreme Court decision in West Fraser Mills Ltd. v. British Columbia, 2018 SCC 22 and considered the degree to which the City had knowledge of or control over the Project's worksite. The trial judge found no credible evidence that the City had control over the workplace sufficient to bring the City within the meaning of the OHSA definition. Further, the City's purpose for being on the Project site was solely to exercise its power to inspect the job for quality assurance and contract compliance, a role that section 1(3) of the OHSA permitted an owner to fill without the owner taking the role constructor.
Finally, the trial judge held that even if the City was an employer for the purpose of the OHSA, she was satisfied on a balance of probabilities that the City had exercised due diligence.
Ontario Superior Court of Justice Decision
The Crown appealed the trial court decision.
In the decision in R. v. Greater Sudbury (City), 2019 ONSC 3285, Justice Poupore upheld the lower court decision, finding that although the City had exercised some control over the Project, it was not sufficient to supplant Interpaving as the Project's constructor.
Further, the court rejected the Ministry's argument that the limitation on the definition of "constructor" provided by section 1(3) of the OHSA should not also extend to an "employer" whose employees are on a worksite, as this was contrary to the contractual intention of the parties, was not supported by any known case law, and would substantially change the historical practice in Ontario on construction projects. The court concluded that the City had not acted as an employer and the appeal was dismissed.
Ontario Court of Appeal Decision
The Ontario Court of Appeal ("ONCA") granted the Crown leave to appeal to, "determine whether the appeal judge erred in concluding that the City was not an employer under the Act." The appeal was allowed (see Ontario (Labour) v. Sudbury (City), 2021 ONCA 252, with the ONCA ruling that the City was an "employer" within the definition of the OHSA. The City was therefore liable for the violations of the OHSA, unless it could establish a due diligence defence.
The ONCA considered the issue narrowly, relying on a plain reading of the language in the definition of "employer" in s. 1(1) of the OHSA as "a person who employs one or more workers or contracts for the services of one or more workers".
Emphasizing that the OHSA should be interpreted generously given that it is public welfare legislation, the ONCA determined that anyone who "employs one or more workers" is an employer for the purposes of the Act and so, as an employer, is "responsible for ensuring compliance with the Act in the workplace". The quality control inspectors at the project site were employed directly by the City. The ONCA stated, "Plainly the City employed one or more workers at the project site within the meaning of s. 1(1)", and thus found the City to fall within the definition of "employer" under the OHSA. The ONCA determined that the exemption found at s. 1(3) of the OHSA, which serves to exclude an owner from becoming a constructor solely by engaging a person to oversee quality control, does not exclude an owner from being an employer for the purposes of the OHSA.
The ONCA declined to examine a question raised by Brown J. A. in granting leave to appeal to the ONCA, regarding whether it is necessary to determine the degree of "control" a municipality must have in order to fall within the definition of "employer" in instances where the municipality has contracted work to a third party. The ONCA stated that it was not necessary to resolve that question given its finding that the City was an employer simply by virtue of employing its own quality control inspectors on the project.
The issue of whether the City had made out the defence of due diligence was remitted back to the Superior Court for its consideration.
The Supreme Court of Canada Decision
The City was granted leave to appeal the decision of the ONCA to the SCC.
In its much anticipated decision on the merits of the appeal which has just been released, the SCC dismissed the City's appeal, but the decision was split equally, with four (4) judges dissenting. Justice Russell Brown did not participate in the final disposition of the judgment (he retired on June 12, 2023).
Reasons of Chief Justice Wagner, and Justices Martin, Kasirer and Jamal (authored by Justice Martin)
Justice Martin's decision affirms the ONCA's decision that the City was an "employer" under the OHSA in relation to the Project.
Unlike the ONCA, the SCC considered the question of whether the degree of control is relevant to an analysis of whether an owner can be considered an employer in the context of a construction project. The SCC decision provides that the degree of control exercised by an owner over the work site is irrelevant to the determination of whether it falls under the definition of "employer" under the OHSA and whether it breaches a provision of the OHSA setting out the obligations of an "employer". However, the decision confirms that the degree of control is relevant to a determination of the success of a due diligence defence.
Justice Martin divided her decision into three parts: (1) providing an overview of the OHSA, (2) explaining why control need not be proved in a prosecution under s. 25(1)(c) of the OHSA, and (3) providing comments on the role of control in relation to the due diligence defence under s. 66(3)(b) of the OHSA.
(1) Overview of the OHSA
The first part of the decision reviews the nature of the OHSA, and in particular, that it is well-established that it has a public welfare purpose8 of maintaining and promoting workplace health and safety and that it fulfills this purpose by allocating various occupational health and safety responsibilities among various workplace actors, including constructors, employers and owners, with such responsibilities often being concurrent and overlapping (referred to as the "belts and braces" approach).9
The decision reviews that the definition of "employer" in the OHSA does not explicitly contain any requirement for a party to exercise "control", nor should a test for "control" be embedded into the definition and its interpretation, specifically stating that court decisions which have read a control requirement into the definition of "employer" should not be followed.10 Given this, the SCC decision concludes that the City was an "employer" in relation to the Project, both due to the existence of its direct employees who were quality control inspectors auditing the site and for having entered into a contract for services with the constructor, Interpaving.11
(2) Control Need Not be Proven in Prosecution under Section 25(1)(c) of the OHSA
The second part of the decision reviews s. 25(1)(c) of the OHSA, which requires employers to ensure that the measures and procedures prescribed are carried out in the workplace, confirming that it does not contain any explicit language necessitating that the employer exercise control over the workplace in order for the provision to apply, nor ought it to be interpreted as such given the context in which it appears in the legislation and the overarching purpose of the legislation as a public welfare statute.12 The SCC decision concludes that the City committed the offence under s. 25(1)(c) and its degree of control over the workplace is not relevant to this finding.13
(3) Role of Control in a Due Diligence Defence
Justice Martin writes in the decision that the due diligence defence under s. 66(3)(b) of the OHSA "functions as a safety valve, in which the presence of control may be a factor in assessing due diligence"14 and "[c]onsidering control at the due diligence stage respects the text, context and purpose of the Act and best upholds its purpose of promoting workplace safety."15
The SCC describes "[t]hat an employer's degree of control over other parties in the workplace is relevant to its due diligence defence also answers fairness concerns about imposing liability on an employer for a breach caused by another party. Considering control under due diligence means employers lacking control may escape liability."16
A key takeaway from the decision is the guidance regarding how an employer's level of control will inform the analysis of a due diligence defence. The relevant considerations for the analysis are summarized in paragraph 61:
[...]Relevant considerations may include, but are not limited to, (i) the accused's degree of control over the workplace or the workers there; (ii) whether the accused delegated control to the constructor in an effort to overcome its own lack of skill, knowledge or expertise to complete the project in compliance with the Regulation; (iii) whether the accused took steps to evaluate the constructor's ability to ensure compliance with the Regulation before deciding to contract for its services; and (iv) whether the accused effectively monitored and supervised the constructor's work on the project to ensure that the prescriptions in the Regulation were carried out in the workplace.17
Reasons of Justices Karakatsanis, Rowe and O'Bonsawin (authored by Justices Rowe and O'Bonsawin) (dissenting)
In their dissent, Justices Rowe and O'Bonsawin (the "Justices") focused on the duties of an employer under the OHSA and the preservation of the existing integrity of the scheme as a whole. After conducting a thorough analysis on the history of the OHSA and of the Regulation, they held that the role of the OHSA is to hold employers accountable when work is performed that the employer controlled and performed through their workers.18
Two issues were examined in light of finding the City liable as an employer:
- Is the City an "employer" under s. 1(1) of the OHSA?
- Do ss. 65 and 104(3) of the Regulation apply to the City as an employer through the operation of s. 25(1)(c) of the OHSA?19
(1) Is the City an Employer?
First, under the definition of an employer, the Justices disagreed with the approach taken by the ONCA as "the fact that a party is an employer does not mean that they are an employer to all workers at a workplace or project...".20 While Justices Rowe and O'Bonsawin agreed that the City was indeed an employer of the City inspectors, they disagreed that the City was an employer of the workers hired by Interpaving. This relationship rather, reflected an owner and constructor relationship.21
In contracting with a party that becomes the designated "constructor", the owner creates a contractual relationship transferring responsibility to a constructor with relevant expertise.22 Given the deliberate choice of the legislature to carve out a distinct owner-constructor relationship, the City did not fall under the definition of an employer. In addition, the OHSA permits the owner to surrender control of the project to another workplace party that assumes responsibility for overall health and safety.23 If an owner did in fact set out to retain an active role in the project they "would run the risk of becoming the constructor themselves" by undertaking all or part of the project.24 Justices Rowe and O'Bonsawin held that treating the owner-constructor relationship as an employer-worker relationship ignores the practical differences between the two relationships and may undercut worker safety.25
(2) Do the Regulations Apply to the City as an Employer through s. 25(1)(c)?
Second, the interpretation of the Regulation applying to the City as an employer through the operation of s. 25(1)(c) of the OHSA would effectively make it such that "everyone who employs anyone is responsible for everything that anyone does."26 This results in an absurd interpretation of the Regulation and would obligate every employer at a construction project to ensure that all measures are complied with, ignoring the existing distinction provided by the OHSA in defining a "project" and a "workplace".
The Justices did not apply the "control requirement" in their analysis. Instead, they recognized that s. 25(1)(c) requires employers to only be required to ensure compliance with measures which actually apply to them. In doing so, the burden of carrying the safety obligations of other employers is lifted. In holding one employer liable for another employer's workers, the Justices consider two different employers at different ends of a site being responsible for each others safety requirements. In this example, it would be illogical to have an excavation company held liable for a welding company not providing gloves for their worker at the opposite end of a site. From their perspective, holding an employer responsible for a measure and procedure that did not apply to them would lead to absurdities.27
However, a significant potential issue with the measures referred to in the Regulation is that the Regulation does not often explicitly identify the party required to implement a given measure.28 As s. 25(1)(c) imposes a duty on the employer to carry out the measures which apply to them, not having a definitive answer for the party responsible for each given measure is problematic. If we are to assume that the measures under the Regulation must be fulfilled by everyone on a construction project, employers do not have a mechanism to ensure compliance with measures that apply to other employers' workers.
The Justices identified that the Ministry made a false assumption in its argument that worker safety would be improved if every employer on a construction project could potentially be found liable for the acts of the other employers on the construction project. An employer cannot serve as an effective brace when there is no relationship between the measure and the employer's work. In turning the finger of liability to 'everyone' for 'everything,' the only increase of anything is the legal jeopardy of unrelated parties in a workplace.29 With this type of redundant thinking, multiple employers may attempt to effect their own version of safety procedures onto unrelated workers at the same site. The confusion could possibly lead to further injuries on the job site.
The reliance on the due diligence defence as a "safety valve", as stated by Justice Martin, was stated by the Justices to be unavailable to most parties from a practical perspective, given that parties who want to advance it may be forced to go to the significant trouble and cost to mount the defence. This may cause those parties who are now liable under the reasoning provided by Justice Martin to plead guilty to offences that can result in significant fines (the highest in Canada) and possibly imprisonment.30
Reasons of Justice Côté (dissenting)
Justice Côté held that: (1) the City was not an employer under the Act; and, (2) that the City had not acted as an employer on the construction site.31 Justice Côté agreed with the analysis of Justices Rowe and O'Bonsawin, concluding both that s. 25(1)(c) must be read in context and that a project employer is not an employer of a constructor or a constructor's workers. Two points raised by Justice Côté is that this decision would not only change the practice in Ontario on construction projects but would also provide a disincentive for project owners to engage in quality control measures.
Where Justice Côté differed in opinion with Justices Rowe and O'Bonsawin was on the issue of whether a municipal project owner could be considered an employer on a construction site simply because it employed quality control inspectors.32 Justice Côté held that with the decision of Justice Martin, municipal project owners would now be exposed to already existing safety breaches at construction sites in attempting to assess the quality of work.33 This, in Justice Côté's opinion, is exactly contrary to what the legislature attempted to address in s. 1(3) of the OHSA, which specifies that an owner does not become a constructor by virtue only of the fact that the owner has engaged an architect, engineer or other person solely to oversee quality control at a project. With the reasoning provided by Justice Martin, owners will now be held liable whether or not they hire a constructor.
Justice Côté reaffirmed the absurdity of the implication that every owner is automatically an employer of every person on a project. And, "(l)ikewise, a project owner is not the employer of its constructor, as this would render the statutory role of constructor redundant."34 As a constructor has the sole authority for health and safety on a project, other employers unassociated should not be held to the industry-specific regulations provided for under s. 25(1)(c).
In addressing the due diligence issues, Justice Côté reaffirmed the trial decision. By confirming that the City ought to have been commended for its inspectors raising the issue of not having police at the intersection, Justice Côté provides a means of assessment different from the other Justices. Justice Côté's decision explains that the approach of the decision of Justice Martin penalizes the City for taking action, which could have a chilling effect on the future reporting of health and safety violations.
Commentary & Conclusions
In our view, the focus in the decisions of the lower courts on the question of "control" as contributing to the determination of whether an "owner" is an "employer" pursuant to the OHSA may have been problematic, as the attention in this case was not instead focused on the overall regime under the OHSA specific to construction projects and, particularly, the manner in which the OHSA allows health and safety responsibility to be delegated on a construction project from an owner to a constructor.
Implications for the Construction Industry
The SCC decision is significant for those involved in ensuring occupational health and safety compliance in the construction sector in Ontario and for those in the sector in other provinces with comparable health and safety legislation.
Uncertainty as to Extent of Duties and Responsibilities as an Employer
In our view, some of the uncertainty introduced by the ONCA as to the potentially broad scope of a project owner's duties and responsibilities under the OHSA to ensure the health and safety of workers on a project by virtue of being an employer, despite a constructor having been designated for the project, remains. What reasonable precautions should an owner, who is also an employer because they have workers present on the project or by virtue of merely having contracted with a constructor, take to comply with its duties under the OHSA? Presumably, in keeping with the established principles of due diligence, it will depend on the circumstances. While the SCC does offer some guidance on what circumstances may be relevant to an owner in making such an assessment (discussed below), this remains an open question and presents a challenge for owners of projects. As the issue of the City of Sudbury's due diligence has been remitted to the provincial offences appeal court for a determination, hopefully greater clarity will emerge that will provide more guidance to owners.
The SCC decision also continues a level of uncertainty for any employer who has workers on a project about whether they may have duties and responsibilities under the OHSA in relation to the workers of other employers on the construction project. The City was found to be an employer under both branches of the definition – that it had employees on the project (the quality control inspectors) and that it had contracted for the work to be performed with the constructor. Construction projects are dynamic places and it is common for there to be multiple employers who have workers on a construction project at the same time, perhaps working in close proximity. While the decision of Justice Martin addresses this concern by noting that there is a distinction between the definition of "workplace" and "project", reasoning that it is "unlikely" that an employer's workplace would span the entirety of the project, the ONCA and SCC decisions open the door to the potential ascription of liability to an employer in relation to work being performed by the workers of other employers on the project because the employer happens to have employees on the project as well.35
Only time will tell whether the potential absurdities identified in the dissenting opinions of the SCC will play out, depending on how the overlapping duties of employers on projects are viewed by Ministry inspectors, the way in which prosecutors exercise their discretion in pursuing charges against particular workplace parties and the way in which the courts decide future cases. For now, one possible implication of the decision by the SCC is that there appears to be a greater potential for owners or other employers on a construction project to be charged in their capacity of "employer" under the OHSA for any alleged non-compliance with regulatory requirements on a project worksite, at the discretion of Ministry inspectors and prosecutors. Given recent legislative amendments that increase the maximum fines under the OHSA for corporations to $2 million upon conviction (see our article here), the stakes involved in such charges are higher than they have ever been for companies engaged in construction in Ontario.
Approach to Due Diligence Measures
The impact of the SCC's decision is that an "owner" who contracts for services, including where the owner designates a "constructor" under the OHSA, retains overlapping responsibility for health and safety in its capacity of an employer. Under the OHSA, employers have much broader responsibilities for the health and safety of workers in the workplace than the specific, express responsibilities of a project owner. In light of the SCC decision, owners and other employers on construction projects may wish to reassess the sufficiency of their due diligence measures moving forward. The reasonableness of such measures and whether they meet the standard of due diligence will depend on the circumstances. There is no "one size fits all" answer to the question of whether a workplace party has been duly diligent. Fortunately, as mentioned previously, the SCC offers some guidance by listing some considerations that may be relevant in assessing whether an owner who contracts for the services of a constructor on a construction project has exercised due diligence in the owner's capacity as an employer:
(i) Degree of Control Over the Workplace and Workers
The SCC decision confirms that it is already well-established in the jurisprudence that control is a factor to be taken into account in assessing whether reasonable care has been taken.36
Indeed, the SCC notes "'What could have been done' is necessarily limited to steps or measures that are within the workplace actor's control and thus capable of being carried out." 37
Part of a workplace party's due diligence defence will involve describing the level of control that it could reasonably be expected to exercise over the workplace and workers to demonstrate that it took all reasonable precautions in the circumstances - i.e. all reasonable precautions that it was reasonably capable of taking in the circumstances. Depending on the circumstances, contractual or other documentation clearly delineating the division of location, work and responsibilities between employers on a project and enforcement of such lines in practice may be helpful in demonstrating a particular workplace party's sphere of control which, in turn, will inform what reasonable precautions could be expected of that party in assessing whether they had met the standard of due diligence.
(ii) Whether Control was Delegated to a Constructor to Overcome Lack of Skill, Knowledge or Expertise to Complete the Project in Compliance with the Regulation
The SCC Decision states "[i]n the construction context, it may be open to a judge to find that the owner took every reasonable precaution because the owner decided to delegate control of the project and responsibility for workplace safety to a more experienced constructor."38 To demonstrate that the owner delegated the work to a more experienced or better qualified constructor requires an understanding of the respective experience and expertise of both parties with respect to ensuring compliance with the OHSA. There are a number of ways an owner and constructor could approach documenting this information at the procurement stage and when entering into a general contract for the construction project.
(iii) Whether the Constructor's Ability to Ensure Compliance with the Regulation was Evaluated Prior to Contracting for Services
It is not unusual for an employer contracting for services generally in both construction and non-construction contexts to engage in some form of pre-screening of a contractor to determine the contractor's expertise, prior record of convictions under the OHSA and ability to ensure compliance with the OHSA. The SCC explains that the pre-screening of a contractor may be a relevant consideration in assessing whether an owner has been duly diligent when engaging a third party constructor for a project.39 There are a number of ways an owner and constructor could approach documenting this information at the procurement stage and when entering into a general contract for the construction project in order to bolster a due diligence defence.
(iv) Whether the Accused Monitored and Supervised the Constructor's Work on the Project to Ensure Compliance with the Construction Regulation
The SCC Decision references this factor in the analysis of a due diligence defence: whether after executing a contract for services with a constructor, the owner "informed the constructor of any hazards at the workplace and monitored the quality of the constructor's work...[s]upervision and inspection have long been seen as sensible steps to take when considering whether that person can avail themselves of the due diligence defence." The SCC goes on to say "[h]ence, categorizing the City as an employer in breach of s. 25(1)(c) of the Act because it sent inspectors to the worksite to monitor Interpaving's work does not condemn the City for supervising Interpaving or otherwise discourage it from doing so. Those efforts may well assist the City in establishing due diligence and escaping liability." 40
It is not unusual for project owners, in a manner similar to the City, to conduct audits or other quality control inspections of a construction project so as to ensure that the contract is being fulfilled. Such audits often address issues such as terms of engagements with subcontractors, costs of goods and materials, whether the work meets the specifications of the contract, timelines and other budget-related considerations. Based on the SCC's decision, a prudent project owner may wish to ensure that such auditing includes monitoring health and safety compliance. The question left open by the SCC's discussion is the nature and extent of monitoring and oversight of health and safety matters that an owner/employer under the OHSA should take in order to demonstrate due diligence in a given set of circumstances. The answer to that question will need to be assessed on a case by case basis and, depending on the circumstances, the approach for one project may not be the approach that ought to be taken in every project.
It is notable that the underlying factual circumstances of the decision in City of Sudbury, which involved a project taking place on a public road over which the municipality had specific legal obligations under the Highway Traffic Act, and where the City's inspector had previously issued an instruction form to the constructor regarding the very safety issue that led to the death of a member of the public, are somewhat unique. While the structuring of the relationships among the "owner", "constructor" and "employers" on the City's project site may be analogous to other construction projects, the somewhat unique facts in this case may impact the decision that the provincial offences appeal court will ultimately make regarding the City's due diligence defence now that that issue has been remitted to them for consideration and may also impact how the courts will interpret and apply the SCC's decision to other factual circumstances in future.
As noted above, the decision of the SCC is significant for those involved in complying with occupational health and safety standards on construction projects.
1 Occupational Health and Safety Act, RSO 1990, c O.1, s. 1(1), "workplace".
2 Occupational Health and Safety Act, RSO 1990, c O.1, s. 1(1), "employer".
3 R. v. Wyssen, 1992 CanLII 7598 (ON CA).
4 Occupational Health and Safety Act, RSO 1990, c O.1, s. 1(1) "project".
5 Occupational Health and Safety Act, RSO 1990, c O.1, s. 1(1) "constructor".
6 Occupational Health and Safety Act, RSO 1990, c O.1, s. 23.
7 Occupational Health and Safety Act, RSO 1990, c O.1, s. 1(3).
8 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 9.
9 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraphs 10-11.
10 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraphs 14-21.
11 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 22.
12 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraphs 25-45.
13 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 46.
14 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 37.
15 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 49.
16 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 50.
17 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 61.
18 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 66.
19 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 74.
20 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 89.
21 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 89.
22 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 99.
23 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 100.
24 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 101.
25 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 103.
26 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 105.
27 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 109.
28 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 113.
29 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 130.
30 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 147.
31 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 164.
32 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 168.
33 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 180.
34 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 201.
35 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 52.
36 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraphs 55-56.
37 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 56.
38 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 57.
39 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraph 57.
40 R. v. Greater Sudbury (City), 2023 SCC 28, at paragraphs 58 & 59.
To view the original article click here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.