Greater Sudbury begets greater responsibility: Supreme Court expands workplace responsibilities for construction sites

The Supreme Court recently shifted the parameters of responsibility for workplace safety in R. v. Greater Sudbury (City). In a 4-4 split decision, the Court found the City of Sudbury liable for a fatal worksite accident caused by a contractor’s employee, concluding that it breached its employer obligations under the Occupational Health and Safety Act (OHSA)¹.

What you need to know

• This decision expands project owners’ risk. An owner need not have control over its contractor’s workers to be held strictly liable for safety violations under the OHSA.
• Responsibility for workplace safety is a shared obligation. Owners and contractors must therefore work collaboratively to fulfil their “concurrent and overlapping” obligations to ensure provincial standards are met.

Background

The facts

The City of Sudbury hired a general contractor, Interpaving Limited, to repair a downtown water main. Their agreement stated that Interpaving would assume control and health and safety oversight of the project, and ensure compliance with the “constructor’s” obligations under the OHSA². Sudbury periodically sent municipal inspectors to visit the site.

During the repair, an Interpaving employee struck and killed a pedestrian while reversing a road grader through an intersection. Sudbury was charged under section 25(1)(c) of the OHSA as an employer, as well as a constructor (even though Interpaving had contractually assumed that role), because it failed to meet provincial requirements to fence off the worksite and have a traffic signaller present³.

The decisions below

The trial judge acquitted Sudbury, concluding that it was not an “employer” under the OHSA because it did not exert direct control over the workers. Similarly, it was not a “constructor”. The Court also determined that Sudbury exercised due diligence by taking reasonable precautions. The provincial offences appeal court upheld the lower court’s decision, but did not address Sudbury’s due diligence defence⁴. The Crown appealed to the Ontario Court of Appeal, which concluded that Sudbury was liable as an “employer”⁵ .Sudbury’s possible status as a constructor was not subject to appeal because it was an issue of mixed fact and law⁶.

The Supreme Court’s decision

Although nine Justices heard this appeal, only eight contributed to the decision following Justice Brown’s resignation. The Court was symmetrically divided on this appeal. Four Justices upheld the appellate decision, and four sought to overturn it. The appellate decision was therefore upheld, as a majority is required to overturn it.

Four Justices found Sudbury liable as an employer

Chief Justice Wagner and Justices Martin, Kasirer, and Jamal agreed that nothing in the text, context, or purpose of the OHSA indicated that “control” was necessary to establish liability under section 25(1)(c)⁷. They emphasized that the OHSA is public welfare legislation, designed to promote safe workspaces by allocating concurrent and overlapping responsibilities to those who own and oversee projects⁸. Permitting workplace actors to shift blame by pointing to others’ failures would undermine this purpose⁹. Additionally, the due diligence defence—which does consider degree of control—acts as a safety valve for ensuring fairness¹⁰.

The matter was remitted to the provincial offences appeal court to assess Sudbury’s due diligence defence.

Four Justices would have acquitted Sudbury

Justices Karakatsanis, Rowe, and O’Bonsawin held that Sudbury was not the employer of Interpaving’s workers, only of the inspectors it sent to the site¹¹. They noted that, in practice, owners promote safety by transferring responsibility to constructors with relevant expertise, and asserted that shared responsibility could create confusion and unnecessary duplication¹². They sought to remit the question of Sudbury’s liability as an employer of the inspectors to the provincial offences appeal court¹³.

Justice Côté went further, asserting that Interpaving was solely responsible for the accident because it had full control over the project¹⁴.

Looking ahead

Moving forward, project owners seeking to reduce risk may need to assume a more active role in ensuring workplace safety. Owners working collaboratively with contractors to meet provincial standards will not only reduce the likelihood of accidents, but will also limit liability under the OHSA and strengthen the viability of a due diligence defence.