The Superior Court of Ontario issued a ruling on August 23 that is certain to bring a sigh of relief to project owners. An appeal launched by the Ministry of Labour, Immigration, Training and Skills Development that, if successful, could have redefined the meaning of “employer” and “constructor” on a construction project, was dismissed.
The Ministry had charged the Corporation of the City of Greater Sudbury and Interpaving Limited under the Occupational Health and Safety Act (OHSA) after the September 30, 2016 death of Cecile Paquette. Ms. Paquette died while attempting to cross a Sudbury street that was under construction.
The City had entered into a contract with Interpaving, a third-party contractor, to repair a downtown water main. Interpaving pleaded guilty to violations under the OHSA before the original trial.
As the court explained in its ruling released August 23, “The contract stipulated that Interpaving would assume control over the entire project, including the assumption of the role of ‘constructor’ under the OHSA as well as the responsibility of ensuring that the requirements of the OHSA were met.”
“The key issue in this case was whether the City of Greater Sudbury could be considered both an ‘employer’ and a ‘constructor’ under the OHSA,” Sahil Shoor, Partner with Gowling WLG, told the Daily Commercial News.
An earlier situation on September 15, 2016 was described as “chaos in the intersection”. A City employee identified a concern about traffic control. A senior manager at Interpaving responded.
The City argued that this was an example of the City’s “due diligence”, whereas the Crown characterized this action as “control”, and within the realm of powers the City had retained as part of its contract with Interpaving. These included, “the right to fire workers on the project, including workers employed by subcontractors”.
The court maintained that although the City had sweeping powers, “there was no evidence that such powers had ever been exercised.”
“The court ultimately upheld the lower court’s decision, finding that although the City had some control over the project, it was not enough to classify it as the project’s ‘constructor,’” Shoor continued. “The lower court also ruled that the City had exercised due diligence in its oversight, which satisfied its legal obligations as an owner under the OHSA.”
The court addressed specific questions in its consideration related to matter of “employer”.
Did the City have control over the workplace and the workers on it?
No. While the City did conduct quality control inspections, this “did not constitute control.”
Did the City delegate control to Interpaving to overcome its own lack of skill, knowledge or expertise?
Yes. The trial judge’s finding that the City had paid a premium to Interpaving to make up for the expertise that the City lacked was upheld.
Did the City evaluate whether the potential constructor had the capacity to perform the work and enforce compliance with OHSA Regulations?
Yes. There was ample evidence of this.
Did the City monitor and supervise the constructor’s work?
Yes. The City’s actions regarding the intersection chaos, and other issues that had arisen during the project, was evidence of supervision.
Justice R. Dan Cornell wrote that the Crown appeal was, in essence, an attempt to request the Ontario Superior Court to, “come to a conclusion different from that of the trial judge, something that is not permitted.”
“The trial judge made no palpable or overriding errors that would permit this court to interfere with her findings or the conclusions that were based upon them,” he wrote.
Rejection of the Crown appeal may provide guidance for construction project owners.
“This decision follows earlier rulings, including a notable Supreme Court of Canada decision, that addressed similar questions about the City’s role,” said Shoor. “The Ontario Superior Court’s decision reaffirms the approach that municipalities and other project owners can fulfill their due diligence obligations without having to exert daily control over construction projects, thus protecting them from liability under the OHSA in certain contexts.”
John Bleasby is a freelance writer. Send comments and Climate and Construction column ideas to editor@dailycommercialnews.com.
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