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Ontario ministry opposes any re-hearing of Sudbury ‘employer’ SCC appeal

John Bleasby
Ontario ministry opposes any re-hearing of Sudbury ‘employer’ SCC appeal

Legal arguments continue regarding the November 2023 appeal ruling from the Supreme Court of Canada on R v. Greater Sudbury that expanded the definition of “employer” under Ontario’s Occupational Health and Safety Act (OHSA).

The decision placed the City of Sudbury at odds with the Ontario Ministry of Labour, Immigration, Training and Skills Development.

The ministry, through the attorney general for Ontario, has now filed its response to the city’s request for a re-hearing of the SCC appeal.

The R v. Greater Sudbury case and subsequent appeals through the court system have been followed with interest by the construction and legal industries across Canada. Several groups have requested intervener status in the case, including the Retail Council of Canada, several regional municipalities in Ontario, and the Workers’ Compensation Board of British Columbia.

With its new Memorandum of Argument, it is clear the ministry vehemently opposes a re-hearing, on several grounds.

“The legal test for granting a re-hearing is necessarily strict and a re-hearing should only be granted in rare circumstances,” the ministry says.

These include, “where the Court, has been misled by, or misled itself with respect to the record; has failed to understand and address the issues and questions before it; or, where there has been a failure of justice through lack of care.”

The ministry says Sudbury “has neither addressed nor met the test for such an exceptional remedy.”

 

The only confusion is that the city appears to misapprehend or ignore applicable jurisprudence, including the decision of the Court,

— Ontario Ministry of Labour, Immigration, Training and Skills Development  statement

 

Sudbury’s reasoning surrounded the 4-4 split ruling in the absence of a ninth tie-breaking judge, the disparity of viewpoints expressed by the eight sitting Justices, and the resultant industry confusion and risk to worker safety form the appeal ruling. A re-hearing was the best remedy.

The ministry memorandum dismisses any consideration of those arguments. The R v. Greater Sudbury case had come before the SCC after a previous Ontario Court of Appeal (OCA) ruling against Sudbury. Therefore, ministry says that, based on established past precedent, the OCA decision governs and should stand, and that a re-hearing by the Supreme Court is not warranted.

Furthermore, the ministry disagrees the SCC appeal has created confusion.

Instead, it says the ruling, “is well- reasoned and based on longstanding binding precedent defining the term ‘employer’ and application of the due diligence defence: creating the best model for the protection of worker health and safety.”

The ministry says the panel of Supreme Court Justices “methodically answered the issues and questions before it on this appeal,” and that, “there are no allegations or any evidence the Court misinterpreted or failed to address the issues and questions before it.”

In other words, there was no failure of justice.

Has there been resultant confusion with respect to the proper interpretation of the term “employer?” No, the ministry says.

“The only confusion is that the city appears to misapprehend or ignore applicable jurisprudence, including the decision of the Court, and its argument is based on mere speculation from a defence bar that has sought for decades to limit the broad definition of the term ‘employer’ under the OHSA to avoid liability under the act.”

“As noted by seven of the justices in this appeal, the definition of the term ‘employer’ has been intentionally broad since the genesis of the OHSA in 1979,” the ministry continues.

It explains this broad definition, supported by the “belts and braces” approach to occupational health and safety, is based on multiple parties being liable on projects. Therefore, potentially unsafe conditions are less likely to slip through the cracks, an approach followed in other provincial jurisdictions.

Not mincing words, the ministry claims the City of Sudbury is also attempting, “to foment confusion in the face of binding precedent in Ontario, and throughout Canada, with respect to the due diligence defence.”

In fact, the ministry holds the Court has in fact clarified the due diligence defence and where the concept of control fits into the analytical framework.

Dissatisfaction with the results of the SCC appeal decision is not sufficient, the ministry concludes.

“The fact the city and legal pundits may be upset by a confirmation of the status quo is not grounds for a re-hearing.”

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