After six years, one trial, two decisions of the Ontario Superior Court of Justice, two decisions by the Court of Appeal for Ontario and a decision by the Supreme Court of Canada, the legal saga – R v Greater Sudbury (City) - has finally ended.
On March 31st, the Court of Appeal for Ontario denied the Ministry of Labour, Immigration, Training, and Skills Development's motion for leave to appeal1, leaving the 2024 Ontario Superior Court of Justice decision2 upholding a 2018 trial court's finding that the City exercised due diligence, as the final word in the R v Greater Sudbury (City).
In November 2023, the Supreme Court upheld3 a prior 2021 Court of Appeal decision4 and remitted the matter of the City's due diligence down to the Superior Court, for another appeal of the 2018 trial decision. We commented on the 2021 Court of Appeal decision (here) and the subsequent 2023 Supreme Court decision (here).
In August 2024, the Superior Court rejected the second appeal of the trial judge's conclusion, finding that the City, as owner of a construction project with employer obligations under the Occupational Health and Safety Act ("OHSA"), had exercised due diligence as an employer.
In December 2023, the Ministry sought leave to appeal the 2024 Superior Court appeal decision. In denying leave, Coroza, J.A. held that the Ministry had failed to meet the high bar set by Court of Appeal in granting leave.
The 2024 Superior Court's decision on appeal stands as the final word on the sufficiency of the due diligence steps taken by the City in meeting its obligations as an employer.
Some of the relevant considerations when assessing due diligence of a construction project owner who is also an "employer" with the meaning of the OHSA that developed throughout the string of decisions in R v Greater Sudbury (City) include:5
- the accused's degree of control over the workplace or the workers there;
- 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 [health and safety legislation];
- whether the accused took steps to evaluate the constructor's ability to ensure compliance with [health and safety legislation] before deciding to contract for its services; and
- whether the accused effectively monitored and supervised the constructor's work on the project to ensure that the prescriptions in [health and safety legislation] were carried out in the workplace.
While the sufficiency of owners' and employers' due diligence will always need to be assessed on a case-by-case basis, the string of decisions in R v Greater Sudbury (City), culminating with the 2024 Superior Court appeal decision and built on the 2023 Supreme Court decision, gives helpful guidance on the appropriate steps an owner who is also an employer on a construction project must take to demonstrate due diligence on a construction project.
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Footnotes
1. Decision not yet published, but available here.
2. R v Greater Sudbury (City), 2024 ONSC 3959.
3. R v Greater Sudbury (City), 2023 SCC 28.
4. R v Greater Sudbury (City), 2021 ONCA 252.
5. R v Greater Sudbury (City), 2023 SCC 28, para 61.
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