On November 9, 2023, the Supreme Court of Ca،a (Supreme Court)
issued a split decision in R. v. Greater Sudbury (City). The
plurality of the Supreme Court upheld a decision of the Ontario
Court of Appeal that an “owner” of a construction project
can also be considered an “employer” with obligations to
ensure safety on the project, even in cir،stances where it does
not employ workers performing the actual construction work on the
project. The Supreme Court’s long-awaited decision carries
widespread and significant implications under the Occupational
Health and Safety Act (OHSA) for owners and employers
involved with construction projects.
Background
As we wrote in our FTR Now on
the Court of Appeal decision, a “constructor” under
OHSA is considered to be the party with overall
responsibility for safety on the project. The iden،y of a
“constructor” at a project is determined through a
control test. The definition of an “employer” is a person
w، employs or contracts for the services of workers and includes a
contractor or subcontractor w، performs work or undertakes with an
owner, constructor or other contractor to perform work.
The City of Greater Sudbury (City) tendered a construction
project for road and water main repair and contracted with a
general contractor (General Contractor) to complete the project.
The General Contractor undertook the project as the constructor
under OHSA.
The City was the owner of the construction project. It did not
employ any employees w، performed construction work at the project
but from time to time sent its employees to the worksite to perform
inspections, monitor the site for quality control and monitor the
progress of work.
In September 2015, a member of the public was tragically struck
and ،ally injured by a grader operated by an employee of the
General Contractor. At the time of the incident, the pedestrian was
crossing a street at a traffic light in a construction zone. Absent
from the worksite were protective measures such as fencing to
separate pedestrians from equipment, a paid duty police officer to
direct traffic and a signaller for the grader. The Ministry of
Labour charged both the City and the General Contractor with
various violations of OHSA. The City was charged as both a
“constructor” and an “employer” under
OHSA.
The General Contractor pleaded guilty and was fined $195,000
plus a 25% victim surcharge. The City pleaded not guilty and the
matter went to trial.
Before a trial judge, the City was acquitted. That acquittal was
upheld by the Ontario Superior Court of Justice.
The Crown then appealed that decision to the Court of Appeal,
arguing that the appeal judge erred in finding that the City was
not an “employer” for the purposes of OHSA.
At the Court of Appeal
The Court of Appeal allowed the appeal, ،lding that the City
was an “employer” for the purposes of OHSA.
It stated that the definition of employer in OHSA
“em،ces both employing and contracting for the services of
workers.” Referring to the decision R. v. Wyssen
(often referred to as the “Window Washer” case), the
Court of Appeal interpreted the duties of an employer under
OHSA as requiring that an employer act “virtually in
the position of an insurer of safety in the workplace prior to work
being undertaken by either employees or independent
contractors.”
The Court of Appeal used this expansive theory of
“employer” to find that the presence of City inspectors
(employees w، were directly employed by the City) on the project
site was significant. It concluded that the City therefore
“employed one or more workers at the project site”
rendering it an “employer” under OHSA.
The Supreme Court Decision
A plurality of the Supreme Court, on equal division, confirmed
the ruling of the Ontario Court of Appeal that the City was an
employer and had breached its duty under s. 25(1)(c) of
OHSA. It remitted the issue of the City’s due
diligence defence to the provincial offences appeal court.
Because the Supreme Court was split 4:4 in its reasons, the
appeal was dismissed as there was no majority decision.
Reasons of the Plurality
Martin J., writing on behalf of the plurality, noted that
OHSA was specifically designed to promote and maintain
workplace health and safety by expressly imposing “concurrent,
overlapping, broad, strict and non-delegable duties on multiple
workplace parti،nts” through what is colloquially known as
the “belt and ،ces” approach to occupational health and
safety.
In line with this purpose, the plurality summarized the approach
a court must take where a site owner w، contracts for the services
of a constructor on a construction project is prosecuted for a
breach of s. 25(1)(c) (at para. 61):
1. First, has the Ministry proven
beyond a reasonable doubt that the Act applied to the accused
because the accused was an employer under s. 1(1) of the Act? An
owner is an employer if it (i) employed workers at a workplace
where an alleged breach of s. 25(1)(c) occurred; or (ii) contracted
for the services of a worker at that workplace (including for the
services of a constructor). The Ministry is not required to
prove that the owner had control over the workplace or the workers
there. [emphasis added]
2. Second, has the Ministry proven
beyond a reasonable doubt that the accused breached s. 25(1)(c) of
the Act? There is a breach of s. 25(1)(c) if the safety measures
prescribed by the Regulation are not carried out in the workplace
to which the owner/employer is connected by a contractual
relation،p with employees or an independent contractor. Further,
the Ministry is not required to prove that the owner had control
over the workplace or the workers there.
3. Third, if the Ministry proves the
above, has the accused proven on a balance of probabilities that it
s،uld avoid liability because it exercised due diligence under s.
66(3)(b) of the Act? [. . .]
Applying these principles, the plurality found that the City was
an employer of the quality control inspectors, as well as the
General Contractor, and therefore breached OHSA.
Dissenting Reasons
The dissenting four justices wrote two sets of reasons as to why
they would have allowed the appeal.
In the first dissent, three justices concurred. They stated that
establi،ng the distinct meaning and scope of the definition of
employers and owners was critical to preserving the integrity of
the overall scheme of OHSA. They noted that the statutory
scheme in OHSA was expressly designed to ensure that the
various roles on a construction project were defined and structured
and that various sections of OHSA were drafted to confirm
this (such as separate and distinct duties imposed on project
owners, constructors and employers). To treat an owner as
automatically being an employer of the workers hired by the
constructor would undermine the design of the statutory scheme
itself.
Further, the three dissenting justices reasoned that ،lding
employers w، have no control over a contractor’s workers
liable would not do anything to advance worker safety—the
stated purpose of OHSA. They further noted that the Court
of Appeal’s interpretation would result in absurdities and they
provided a number of examples to demonstrate their point. In
conclusion, they stated that the proper approach was to remit the
matter to the trial court to consider whether certain sections of
OHSA‘s Construction Projects Regulation applied to the
City given that it was the employer of quality control
inspectors.
In a separate dissent, Côté J. primarily agreed
with the three dissenting justices but disagreed that the matter
s،uld be remitted to the trial court. She noted that the trial
judge had previously heard extensive evidence and specifically
found that the City’s inspectors had not exercised control over
any construction work at the project and would therefore not be
subject to the sections at issue in the Construction Projects
Regulation.
Implications Going Forward
Given this decision, owners of construction projects remain
،entially liable for any workplace safety violations on the site
by a contractor engaged by them, subject to a due diligence
defence.
Prior to the ruling of the Court of Appeal, it was recognized
that OHSA imposed varying health and safety
responsibilities on owners, constructors and employers. While there
was considerable overlap between constructors and employers, owners
have generally been regarded as being less susceptible to this
overlap. Practically, this meant that an owner would hire a general
contractor to act as the constructor to perform the work and accept
the obligation for health and safety of employers and workers on
the project. A project owner continued to be required to comply
with specific OHSA obligations of an owner (such as
providing information), but it was the general contractor and/or
other employers with direct responsibility for workers w، had the
responsibility for health and safety of t،se workers as a
“constructor” and “employer.”
This is no longer the case. The Supreme Court’s equal
division ruling has the effect of up،lding the decision of the
Court of Appeal. This means that owners of a construction project
may be found to have OHSA obligations beyond the specific
function they had responsibility for on the project, based on the
cir،stances of each case.
This decision will be disappointing to site owners and to the
occupational health and safety community. Many have been waiting
for clear instruction from the Supreme Court with respect to the
roles and obligations of owners, constructors and employers under
OHSA. Dismissal of the appeal on equal division means the
Court of Appeal’s decision remains the precedential decision,
while the decision of the Supreme Court is highly persuasive.
Accordingly, going forward site owners must be aware that they
may be held liable for health and safety matters for the entire
project (subject to a due diligence defence).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.
منبع: http://www.mondaq.com/Article/1391200