Ontario Municipal Project Owners are liable for site safety even though they may lack control over the worker or workplace under Occupational, Health & Safety Act!
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Ontario Municipal Project Owners are liable for site safety even though they may lack control over the worker or workplace under Occupational, Health & Safety Act!
Supreme Court says owner is liable as employer under workplace safety law, needs to show due diligence.
On November 10, the Supreme Court of Canada (SCC) released its decision in R. V Greater Sudbury (City) (Sudbury).1 The case involved charges against the City of Sudbury (the City) following a fatal accident on a construction project owned by the City. The City was charged as an “employer” with violations of the Occupational Health and Safety Act (the OHSA) and its regulations, despite it engaging a general contractor to perform all work on the site.
The issue before the SCC was whether a property owner, like the City, who contracts with a general contractor to complete all work on a construction project nonetheless engages ongoing health and safety duties as an “employer” under the OHSA.
In a rare 4-4 split decision, the prevailing view of the SCC is that such an owner would be an employer under the OHSA, with all the legal responsibilities that go along with that. In the face of an OHSA violation on the worksite, the only defence for such an owner would be to demonstrate “due diligence” in taking reasonable precautions against workplace risks. Therefore, Owners must double down on their due diligence efforts to keep construction work safe and legally compliant.
Increased focus on due diligence
Going forward, an Ontario property owner who engages in a construction project will likely be an employer for OHSA purposes, with all attendant duties under that legislation, if either: one of its employees is present at the construction site, regardless of whether that employee is engaged in construction work on the site; it engages a general contractor to carry out construction work.
Lower court decisions
After a review of the contract and the roles of the parties on the project, the Ontario Court of Justice held that the City was neither an “employer” nor a “constructor” and therefore owed no duties under OHSA.
The Ministry unsuccessfully appealed the Ontario Court of Justice decision to the Superior Court of Justice, which upheld the trial judge’s decision.
Ontario Court of Appeal
The Ministry then appealed the Superior Court of Justice decision to the Ontario Court of Appeal. The Ontario Court of Appeal allowed the appeal on the issue of the City’s status as an “employer” on the project. The Court of Appeal held that the City qualified as an “employer” for the purposes of OHSA and was therefore responsible for ensuring compliance with OHSA.
Supreme Court of Canada
The City appealed the decision of the Ontario Court of Appeal to the Supreme Court of Canada. The decision of the Supreme Court was evenly split (meaning the Ontario Court of Appeal decision has been upheld).
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