In the recent case of R. v. Greater Sudbury (City), 2023 SCC 28 (“Sudbury”), the Supreme Court of Canada expanded the legal duties and potential liability of “employers” under occupational health and safety (“OHS”) legislation to owners of construction projects.  As a decision of the highest court in Canada, Sudbury could have significant implications for local governments nationwide.  However, it is unlikely to impact local governments in British Columbia because of differences between Ontario’s and British Columbia’s OHS legislation.

Background and Lower Court Decisions

In Sudbury, the Corporation of the City of Greater Sudbury (the “City”) contracted with Interpaving Limited (“Interpaving”) to repair a downtown water main owned by the City.  During the repairs, an Interpaving employee struck and killed a pedestrian when driving a road grader in reverse through an intersection.  Contrary to Ontario’s OHS legislation, there was no fence placed between the construction project workplace and the public intersection, and no signaller was assisting the Interpaving worker.

As a result of the accident, Interpaving and the City were both charged under Ontario’s Occupational Health and Safety Act (“OHSA”) with breaching their duty as an “employer” to ensure that the measures and procedures prescribed by the legislation were carried out.

At trial, the City was held not to be an “employer” under the OHSA and acquitted because Interpaving, not the City, had direct control over the workers and the intersection.   However, upon appeal to the Ontario Court of Appeal for Ontario, the appeal court found the City to be an “employer” and to have breached its duty as an “employer” under the OHSA.

The City appealed the Court of Appeal’s decision to the Supreme Court of Canada.

Supreme Court of Canada Decision

The Supreme Court of Canada issued a split decision in Sudbury, which means that the judges ruled equally for and against allowing the appeal.  As a result, the appeal was dismissed, and the decision of the Court of Appeal was upheld. The reasons for judgment in an equal division of the Supreme Court of Canada are not necessarily binding on lower courts but are treated as highly persuasive.

The judges who held that the City was an “employer” did so because the City entered into a contract for services with Interpaving and employed quality control inspectors that attended the construction site.  While the degree of control is sometimes considered when determining whether an employment relationship exists in other circumstances, the judges on this side of the split held that the City’s degree of control was irrelevant because this factor is not explicitly part of the relevant provision of the OHSA.  Accordingly, regardless of its degree of control, because the City had some oversight over the contractor it was found by this portion of the judicial panel to be an employer.

On the other side of the split, the remaining judges stated that finding the City responsible for the accident as an “employer” under the OHSA would be absurd because of the implication that every construction contract owner would be considered an “employer” of every person on a project and thus responsible for everything that anyone does.

The Defence of Due Diligence

Although the Supreme Court of Canada’s split decision resulted in the Court of Appeal’s decision being upheld and the City being held an “employer”, this is not the end of the story.  As with most statutory offences, once the elements of an offence are proven, the offending party still has an opportunity to show that they should not be found guilty as they exercised sufficient due diligence in an attempt to avoid the offence.  In this case, the matter will go back to the Ontario provincial offences appeal court to determine whether the City exercised sufficient due diligence in the circumstances.  The portion of the Supreme Court of Canada that held the City to be an “employer” stated that the degree of control the City had over the worker, although not part of the considerations of whether the party is an “employer”, should instead form part of the due diligence analysis.  It remains to be seen whether the City will be successful in proving the due diligence defence.

Application in British Columbia

Sudbury was decided within the statutory framework of Ontario’s OHSA, and the specific wording of the definition of “employer” was a key factor in the decision.  In British Columbia, the primary OHS legislation, the Workers Compensation Act (“WCA”), has a narrower and more specific definition of “employer”.  The differences between the OHSA and the WCA mean that Sudbury likely has limited application in British Columbia.

The WCA defines an “employer” as “every person having in their service under a contract of hiring or apprenticeship… a person engaged in work in or about an industry”.  In contrast, the OHSA defines an “employer” as “a person who employs one or more workers or contracts for the services of one or more workers…”.

In Sudbury, the City was found to be an “employer” because it contracted for the services of Interpaving.  It is arguable that the City would not be found to be an “employer” under the WCA’s narrower definition, which requires a contract of hiring.  Therefore, it is unlikely that Sudbury expands the legal duties under the WCA of “employers” to owners of construction projects in British Columbia.  However, a spectre of risk remains, as Sudbury confirms that the general scheme of OHS legislation, including the WCA, is “to hold bother owners and employers responsible in an overlapping and cooperative way for ensuring worksite safety”.

Key Takeaway

Sudbury is unlikely to impact whether local governments in British Columbia will be held liable as an employer of its contractors under the WCA.  However, Sudbury confirms the elements of the due diligence defence available under OHS legislation, specifically that a lack of control may indicate a defence at that stage.

In light of this decision, local governments undertaking construction projects will want to delegate responsibility to general contractors through construction contracts, be mindful of the obligations the WCA imposes upon “owners”, and generally exercise due diligence by taking all reasonable precautions in the circumstances.