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Legal Notes: Sudbury applies to reopen SCC appeal concerning ‘employer’ status

John Bleasby
Legal Notes: Sudbury applies to reopen SCC appeal concerning ‘employer’ status

A landmark decision from the Supreme Court of Canada (SCC) issued late in 2023 expanded the definition of “employer” to include a project owner.

The ruling not only left Sudbury, Ont. vulnerable to fines and penalties under Ontario’s Occupational Health and Safety Act (OHSA) but left the entire construction industry confused regarding the identity of workplace parties and associated due diligence obligations regarding workplace safety.

It should therefore come as little surprise that the City of Sudbury applied last month for a motion to re-hear the Supreme Court appeal.

The city’s motion makes a number of compelling arguments for a re-hearing.

Aside from the confusion that has resulted, the Supreme Court decision was split 4–4 among the ruling Justices.

The deciding ninth judge, Justice Brown, did not participate in the decision of the court and had, in fact, retired and was not replaced in time for the rendering of the decision.

This resulted in what the city calls “an extremely rare ‘equal division’ in the Court.”

Consequently, it says, “Owners across the country have been deprived of this Court’s opinion on the scope of their obligations as ‘employers.’”

“The split reasons of the court represent two diametrically opposing views of how the OHSA (and similar workplace safety schemes across the country) should be interpreted in the context of construction contracting,” the city says.

Notably, the four dissenting Justices were quite forthright in their views, two holding that it “would be absurd to interpret 25(1)(c) and the regulation as obligating every employer at a construction project to ensure compliance with all measures contained within the regulation.”

The words “absurd” or “absurdity” were used more than three dozen times among the dissenting judgments.

Clarification is important, the city says.

“A re-hearing would permit this Court to make a decision about two completely opposite interpretations and eliminate uncertainty across the country about how the law works in this important area. This Court should answer the question of whether an owner has legal obligations as ‘employer’ on a construction project for workers whom they do not control. Parties on construction projects would benefit greatly from this Court’s guidance.”

“Interestingly, it does not appear as if the respondent, the Attorney General of Ontario, filed any response to the motion,” Sahil Shoor, a partner at Gowling WLG, told the Daily Commercial News.

Yet, granting a re-hearing would be very unusual, Shoor said.

“I can’t remember a successful motion for re-hearing in many years.”

Agreeing to a re-hearing as a result of a motion application by the city as defendant is not something he expects.

“I have to think that the SCC will deny the motion. If the Court had thought the 4-4 split decision regarding the City of Sudbury would create a problem, they themselves would have ordered a re-hearing, just as they did in Bykovets v R .

Shoor points out in the case of Bykovets, the Court ordered a re-hearing of the appeal on its own volition, in fact just days before the Sudbury ruling was released.

Should the re-hearing be denied, it leaves the construction industry and the legal community with the prospect of waiting for new and future case law to provide direction and a defense that in the meantime relies on proving due diligence without precise definition.

Denial of the motion could also create onsite risks across the country on projects ranging from small-scale home renovations to major, multimillion-dollar projects in both the private and public context, a point made in the city’s motion request.

“The identity of the owner as ‘employer,’ and how an owner may exercise appropriate due diligence as an ‘employer’ without inadvertently assuming the role of ‘constructor,’ may imperil health and safety on projects.”

The city goes further, saying in the absence of clear guidance from the Court, the lack of clarity regarding the identity of “employer” and due diligence issues require a paradigm shift in procurement, project planning and execution.

John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to

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