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Lawyer cautions parties on construction sites to ‘stay in their lanes’ following Sudbury decision

Angela Gismondi
Lawyer cautions parties on construction sites to ‘stay in their lanes’ following Sudbury decision
ANGELA GISMONDI — Patrick Groom, partner, employment and labour relations, McMillan LLP was one of the speakers at the League of Champions Improve Your Health and Safety Culture event in Mississauga, Ont. recently.

The Supreme Court of Canada’s R v. Greater Sudbury decision sent shockwaves through the construction industry by calling into question the roles and responsibilities of different parties on a construction site.

At a recent event, lawyers from McMillan LLP advised owners, constructors, contractors and consultants to stay in their lane.

“Staying in your lane is perhaps the most important element that we can take away from the Sudbury decision and making sure you’ve done everything within my box, what I am responsible for,” said Patrick Groom, partner, employment and labour relations at McMillan, who led a discussion at a recent League of Champions event in Mississauga, Ont. with colleague Talia Gordner.

“One of the key things with owners that we’ve been seeing is what level is an owner now getting involved in the health and safety management program on a project? Are they going beyond just hiring a constructor? And now is the owner going to be dipping their nose into the health and safety program itself? Is the owner going to be assessing or signing off on it being comprehensive enough?”

He said he would advise owners to take a step back.

“Your job, staying in your lane, means ensuring that the constructor is implementing a program, making sure the constructor is qualified to do so, that goes back to COR or ISO certification, making sure the constructor is giving you regular reports to ensure compliance,” said Groom.

“You’re monitoring the constructor following that program as an owner. You are not supposed to be involved in administering or assessing or evaluating the health and safety program itself.”

Nothing has changed for constructors, he added.


Industry reacts to Sudbury decision

The incident in question occurred in September 2015.

The City of Sudbury had contracted with Interpaving to repair a watermain in the downtown core. An Interpaving employee was operating a grader on the site when a pedestrian was struck and killed.
The case made its way through the lower courts and to the Supreme Court of Canada (SCC) after various appeals. After two years, the court issued its decision on the case in November 2023.

It was a split decision, with eight justices ruling, which means the Ontario Court of Appeals decision remains in place.

“What the Court of Appeal did confirm is that the city is an employer on the site,” said Groom. “The court found that they were not only an employer because they had people who were working on the site but also because they had entered into a contract with Interpaving for it to be a constructor.”

The decision was handed down over six months ago and since then owners have been scrambling to include requirements for hiring contractors who have COR or ISO certification and some municipalities are getting training for themselves, Groom said.

Some are even going a step further.

“I’ve seen this come up a couple of times on projects and that is where the owner has called the MOL (Ministry of Labour) inspectors onto their own projects saying, ‘I have a situation where my constructor, my contractor is not being responsive to me and I’m concerned about how things are going,’” said Groom.

“The client having called in the MOL actually took the ultimate due diligence step…It is certainly a risky thing to do, particularly for an owner, but it is something that I’ve now seen happen on a couple of different occasions.”


Awaiting a date for due diligence hearing

The question of did the city act with due diligence has not been answered yet.

The SCC agreed with the Ontario Court of Appeal that the matter of due diligence should be sent back to the Superior Court to be heard. That hearing has not been set but those in the construction industry are now waiting for the results and what it will mean for them.

“Did Sudbury take all precautions reasonable in the circumstance to lower that pedestrian death? That is the question that’s going to be asked and that they’re going to have to argue when it goes to the Superior Court,” said Groom.

“There is a solid chance that the appeal courts will find the City of Sudbury did not exercise due diligence, that it did not take all precautions reasonable in the circumstances because they had warned Interpaving of a lack of signage, a lack of fencing, a lack of the use of a signal person and still allowed the project to continue.”

Groom said there are records that indicate there was at least some prior communications on multiple occasions by email and phone calls.

“Hopefully somebody actually made notes of those calls. Hopefully somebody actually has a record of what was discussed. Hopefully there are going to be training records for that individual who was operating the grader,” said Groom.

“It’s hard to say which way they’re going to go, but what we have to think about now is if Sudbury the owner is liable as an employer and they had the power to stop the project, should they have?” he added. “I can’t answer that question right now but it’s certainly a very large looming and dangerous question and we’re all going to have to see what the courts say.”

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