A recent decision from the Supreme Court of Canada involving a tragic workplace accident has provided clarity on what the courts will assess when determining if a municipality is an “employer” under Ontario’s Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “OHSA”).

Background

In early 2015, the City of Greater Sudbury (the “City”) entered into an agreement with Interpaving Limited (“Interpaving”) to carry out certain construction works in downtown Sudbury. Under the contract, Interpaving was to assume control over the whole of the project and act as the “constructor” pursuant to the OHSA.

Construction began in mid-2015. Quality control inspectors employed by the City were present at the construction site from time to time and, on at least one occasion, raised safety concerns to Interpaving. Later on during construction, a pedestrian crossing an intersection in the construction zone was struck and killed by a road grader being operated by an Interpaving employee.

As a result of the tragedy that occured, both the City and Interpaving were charged by the Ministry of Labour with violations of the OHSA regulations and provisions. The City was charged on the basis that it was an “employer” for the purposes of the OHSA. While the City conceded that it sent inspectors to the construction site, it argued that, in this case, it was not an “employer” with the duty to ensure that measures and procedures of the OHSA regulations were carried out.

Findings of the Courts

Ontario Court of Justice & Superior Court of Justice

The Court of Justice (the “OCJ”) held that the City was not employer for the purposes of the OHSA. The Court held that the City did not have direct control over the workers or the intersection. The Court ultimately determined that the Ministry did not prove that the City acted as an employee or as a constructor on the project. In the alternative, the Court held that even if the City breached it’s obligations as an employer under the OHSA, it acted with due diligence and took all reasonable precautions in the circumstances.

The Superior Court of Justice upheld this conclusion on appeal from the Ministry. Poupore J, writing for the Superior Court, (the “SCJ”) agreed with the lower Court in finding that the City did not act as a constructor employer due to its level of control over the workers or the site. Poupore J also agreed with the lower Court in dismissing the argument that the City’s was a constructor or employer for having quality control inspectors on the site. Further agreement was had in finding that the parties did not contemplate that the City was an employer in their contractual relations. In the end, Poupore J held that the lower Court properly assessed the facts at hand in finding that the City was not an employer.

Ontario Court of Appeal

The Court of Appeal unanimously overturned the verdicts of the OCJ and the SCJ and concluded that the City was an employer with the duty to ensure that the provisions and regulations of the OHSA were carried out at the workplace.

The Court of Appeal adopted a broad interpretation of the definition for “employer” set out in the OHSA. The Court explained that the OHSA is public welfare legislation which, as a general rule, should be read in a liberal and broad manner with accordance with its purpose. Reviewing the definition of an “employer” accordingly, the Court held that a person “who employs one or more workers” is an employer with the responsibility of ensuring compliance with the provisions and regulations of the OHSA.

In this case, the Court held that the City plainly employed one or more workers at the project site bringing it within the definition of an “employer” under the OHSA. The Court further clarified that an exemption in the OHSA “… which precludes an owner from becoming a constructor by engaging a person to oversee quality control[] does not preclude owners from becoming employers.”[1]

The Court of Appeal refused to address the issue of whether the City satisfied its due diligence obligations under the OHSA. The Court of Appeal noted that it sat in appeal from the decision of Poupore J for the SCJ who did not provide a decision on this issue. Accordingly, it ordered that this particular issue be remitted back to the SCJ. 

Supreme Court of Canada

The Supreme Court of Canada (the “SCC”), on equal division, upheld the holding of the Court of Appeal and dismissed the City’s appeal. The majority of the SCC agreed with the Court of Appeal in finding that the City was an employer which breached its duties under the OHSA. The majority clarified that while control over workers and the workplace may bear on a due diligence defence, nothing in the Act requires a person or entity to have a certain degree of control over workers or the workplace to be considered an employer with the duty to ensure compliance with the provisions and regulations of the OHSA. However, control may properly be considered when determining if an employer who breached the OHSA can provide a defence on the basis that it acted with due diligence.

The SCC clarified that the OHSA aims to provide a reasonable level of protection for the health and safety of workers by imposing different health and safety duties among various parties in the workplace. All workplace participants are responsible for ensuring that a workplace is safe.

The majority ultimately held that the City was an employer of both the quality control inspectors on site and of Interpaving. As an employer, it was required under the OHSA to ensure that the prescribed measures and procedures were followed and abided by in the workplace. On the facts, the majority held that the City did not carry out certain measures required by the regulations and, by consequence, committed an offence under the OHSA.

Takeaways and Conclusion

The decision of the SCC in this case clarifies that a municipality may be considered an employer for the purposes of the OHSA where it employs one or more workers at a particular worksite. By consequence, municipalities may be responsible for ensuring compliance with the provisions and regulations of the OHSA.

While a municipality’s degree of control over a workplace will not govern whether or not it is liable under the OHSA, control may be a factor in determining whether the municipality acted with due diligence despite a violation.

Moving forward, municipalities contracting for any type of service should be mindful of occupational health and safety responsibilities. Municipalities should make efforts to monitor how those services are being provided and to ensure that occupational health and safety standards are being met in the delivery of those services.

[1] 2021 ONCA 252, para 14.