A Case Summary of R v Greater Sudbury (City)[1] Written by Iain A. Walker (Partner) and Zachary Fischer (Articling Student) Overview The Supreme Court of Canada recently released its decision in R v Greater Sudbury (City) dismissing an appeal over the finding that a municipality was an employer under Ontario’s Occupational Health and Safety Act (the “Act”). The appeal concerned the statutory liability a municipality faces as an employer and whether the City of Greater Sudbury (the “City”) was an employer under the Act. The City took the position that since control of the work had been delegated to the contractor, the City was not the employer. Lower Courts Acquit the City The matter stems from a fatal accident that occurred while repair work was being done on a water main in the City’s downtown. The City had hired Interpaving Limited (“Interpaving”) to complete the work. A pedestrian was struck and killed while an Interpaving employee was reversing a piece of equipment through an intersection. In contravention of Ontario’s Construction Projects regulation, no proper fencing was in place and no signaller was present.[2] Interpaving was convicted under s. 25(1)(c) of the Act, and the City was charged under the same provision. The provision states: 25(1) An employer shall ensure that, … (c) the measures and procedures prescribed are carried out in the workplace; …[3] The trial judge at the Ontario Court of Justice acquitted the City of all charges. She found that the City did not have control over the workplace as it did not supervise or direct the activities there. Further, while the City would send inspectors to the worksite, their role was one of quality control, not supervision.[4] The judge concluded that the City was not an employer or constructor and therefore not subject to the obligations created by the Act. She also noted that even if the City was considered an employer, they established the defence of due diligence.[5] An appeals judge of the Ontario Superior Court of Justice upheld the trial judge’s decision. He agreed that there was insufficient proof the City exercised enough control over the workers and worksite to be an employer under the Act.[6] The Court of Appeal Allows the Appeal Without Addressing the Issue of Control The Ontario Ministry of the Attorney General (Ministry of Labour, Immigration, Training and Skills Development) (the “Ministry”), which was responsible for charging and prosecuting the City, appealed the lower courts’ findings to the Ontario Court of Appeal. The Court of Appeal allowed the appeal. It found that since the City employed inspectors at the worksite it was an employer under the Act and would be liable for breaches of the Construction Projects regulation unless they established the defence of due diligence.[7] The Court of Appeal found it unnecessary to address the issue of control and remitted the matter to the Ontario Superior Court of Justice to hear the appeal regarding the due diligence defence. Supreme Court of Canada Dismisses the Appeal in a Split Decision The City appealed the decision of the Court of Appeal to the Supreme Court of Canada (the “SCC”). The SCC was evenly split, four – four, on the decision and dismissed the appeal. The City is an Employer that Breached its Obligations Justice Martin, writing for the majority, advanced her analysis in three parts. The first was an overview of the Act. She affirmed that protective legislation such as the Act is to be interpreted generously and should not be construed in a way that would frustrate the objectives of the legislature.[8] Protective legislation is Further, she noted that the Act takes a ‘belt and braces approach’ which means that obligations under the Act can be concurrent and overlapping. Different parties may be responsible for the same protective functions and measures, and they cannot escape liability by pointing fingers at one another.[9] The second part of Justice Martin’s analysis focused on whether the City was an employer under the Act and whether the City breached its obligations under the Act. Since the City was charged with a strict liability offence, the mens rea element (or a ‘guilty mind’) need not be proven. Instead, only the actus reus (the occurrence of the physical act) must be proven beyond a reasonable doubt. In this case what needed to be proven was that the City was an employer under the Act and that in their capacity as an employer it breached its obligations under the Act and the Construction Projects regulation.[10] In finding that the City was an employer under the Act, Justice Martin found that there was no requirement for control contained in the definition of ‘employer’ under section 1(1). Nor did she believe that one should be imparted as adding an additional element would be a legislative function and not a judicial one. She further noted that under common law, a relationship with an independent contractor is characterized by a lack of control and the phrase “contract for services” refers to that relationship. According to the Ontario Court of Appeal in R v Wyssen, 1992 CanLII 7598 (ON CA), by including that phrase in the definition of employer in section 1(1) of the Act then such relationships are captured in the definition. Therefore, a person can be an employer under the definition even when there is no control over the work.[11] Since the definition of constructor did have an element of control, the absence of that element in the definition of employer represented deliberate legislative intention. As such, it was affirmed that the term ‘employer’ in the Act encompasses two relationships: “(1) where a person employs workers; and (2) where a person contracts for the services of workers.”[12] According to Justice Martin, the City was an employer in both senses as it employed worksite inspectors directly but also employed Interpaving to undertake the project.[13] The question then became whether the City, as an employer, had breached s. 25(1)(c) of the Act. After breaking down the section by text, context, and purpose, Justice Martin found that the City had breached its duties. It was irrelevant what level of control the City had over the project. There was no language present in s. 25(1)(c) that indicated a control requirement. She noted that the provision had been drafted broadly intentionally and that a narrow interpretation would undermine the overlapping ‘belt and braces’ purpose of the section.[14] As an employer, the City had the duty to ensure the required measures and procedures were in place. On the date of the fatal accident, they were not. Therefore, the City committed an offence under s. 25(1)(c).[15] The third part of Justice Martin’s analysis looked at the due diligence defence. Once it is established that a breach has occurred, the accused has the burden of proving on a balance of probabilities that the due diligence defence applies, if they are to rely on it. To prove due diligence an accused must show that every reasonable precaution was taken in the circumstances.[16] Justice Martin held that it was at this stage of the analysis that the element of control becomes relevant. Considerations on whether an accused exercised due diligence… “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] Finding that the defence had not been fully addressed at the courts below, the matter was remitted to the Ontario Superior Court of Justice for a determination on whether the City could escape liability by proving due diligence. The Dissents Would Have Allowed the Appeal As mentioned above, the Supreme Court was evenly split on whether to dismiss or allow the appeal. Four dissenting Justices would have allowed the appeal. Justices Rowe and O’Bonsawin (Justice Karakatsanis concurring) agreed with the majority in finding that the City was an employer, but only for the fact that they directly employed quality control inspectors at the project. They did not believe that the City was an employer of Interpaving.[18] In their opinion an owner of a project does not become an employer by simply hiring a constructor or contractor. They further departed from the majority in their analysis of the duties of an employer under s. 25(1)(c) of the Act and the Construction Projects regulation. For these provisions to apply to an employer, Justices Rowe and O’Bonsawin believed that there had to be a nexus or connection between the measure to be performed and the employer. Control would be evidence of such a nexus. Without the nexus they feared absurd possibilities could arise. For example, an excavating company on one part of the jobsite could be liable for welders on another part of the jobsite not wearing gloves.[19] It was the preference of Justices Rowe and O’Bonsawin that the matter be remitted to the Ontario Court of Justice for a new hearing in whether a sufficient nexus was established to find that the regulatory measures applied to the City in these circumstances. Justice Côté, who wrote a separate dissenting opinion, substantially agreed with the analysis undertaken by Justices Rowe and O’Bonsawin. However, she disagreed with their opinion that the matter needed to be remitted to the Ontario Court of Justice. It was her opinion that enough evidence was before the trial judge to properly conclude that the required nexus between the measures prescribed and the City was not established. Merely hiring quality control inspectors did not make the City an employer. Justice Côté would have allowed the appeal and restored the acquittals.[20] The Impact in Alberta The impact of the SCC’s ruling in this case is likely limited in its application to Alberta. As mentioned previously, both the Construction Projects regulation as well as the Act are pieces of Ontario provincial legislation. Much of analysis undertaken in the majority and dissenting opinions focused on the correct interpretations of provisions within those pieces of legislation. While Alberta has its own Occupational Health and Safety Act, it does not have the same provisions that were interpreted in this decision. Much of this decision turned on the definition of ‘employer’ and the correct application of s. 25(1)(c) in the Act. The definition of employer under the Alberta legislation is vastly different. The definition in Alberta has a narrower focus and it would be unlikely that a municipality would be considered an employer to the same extent as it was found in this decision.[21] The provisions regarding an employer’s obligations also differ significantly between the Ontario and Alberta legislation. The Alberta legislation includes the phrase “as far as it is reasonably practicable” which appears to require an element of control that the Ontario legislation did not.[22] Further, in Ontario, the Act creates a quasi-criminal offence for breaching employer obligations with the potential for substantial punishment.[23] This is not the case in Alberta where only relatively minor administrative penalties can be imposed.[24] One key takeaway that does apply everywhere is the SCC’s desire to interpret health and safety legislation as broadly as possible to ensure the greatest protections. It will not shy away from creating overlapping obligations for different parties and employers. [1] R v Greater Sudbury (City), 2023 SCC 28 [Greater Sudbury]. [2] Construction Projects, O Reg 213/91, ss. 65 and 104(3) [Construction Projects]. [3] Occupational Health and Safety Act, RSO 1990, c O.1, s. 25(1) [OSHA]. [4] Greater Sudbury, supra note 1 at para 70. [5] Ibid. [6] Ibid at para 71. [7] Ibid at para 73. [8] Ibid at paras 8 & 9. [9] Ibid at paras 10 & 11. [10] Ibid at para 12. [11] Ibid at paras 14 – 18. [12] Ibid at para 17. [13] Ibid at para 22. [14] Ibid at paras 25 – 45. [15] Ibid at para 46. [16] Ibid at para 48. [17] Ibid at para 61. [18] Ibid at para 89. [19] Ibid at paras 105 – 149. [20] Ibid at paras 188 – 193. [21] Occupational Health and Safety Act, SA 2020, c O-2.2, s 1(k). [22] Ibid at s.3(1). [23] Ibid at s. 44. [24] OSHA, supra note 3 at s. 66.