“Ontario’s construction industry can breathe a sigh of relief,” write Gowling WLG partners Sahil Shoor, Tushar Anandasagar and associate Michael Piaseczny.
Concluding what they refer to as “nothing short of a marathon,” the critical case of the Crown vs. the Greater City of Sudbury has reached a final ruling from the Ontario Court of Appeal.
The reason this final ruling is so critical to the province’s construction industry is that it finally sets out the matter of worksite control and the project owner’s liability under the Ontario Health and Safety Act (OHSA).
As the Gowling team writes, at stake was “the very definition of ‘owner’ responsibility in the construction industry and whether such contracting parties could be held liable for the actions of contractors that were not under their day-to-day supervision or ‘control.’”
The issue surrounded a tragic worksite incident that occurred in 2015.
As was reported in the Daily Commercial News over several months, the Greater City of Sudbury had contracted with Interpaving Limited to act as the “constructor” to repair a downtown watermain. During the repairs, an Interpaving employee struck and killed a pedestrian when driving a road grader through an intersection in reverse.
The ministry charged the city for breaching its obligations as an “employer” under the OHSA by failing to ensure certain safety requirements of the province’s construction projects regulation had been met.
The city conceded it was the owner of the construction project and had sent its own quality control inspectors to the site to oversee Interpaving’s contract compliance. However, the city denied it was an employer, arguing it lacked control over the repair work and had delegated that control to Interpaving.
The case went through a series of appeals resulting from the trial judge’s original acquittal of the city in 2018, ultimately reaching the Supreme Court.
The city’s defense was based on it having maintained “due diligence.” This has now been upheld by the Ontario Court of Appeal as per the original trial judge’s ruling, thus concluding further legal action related to the 2015 incident.
In terms of takeaways for constructors, owners and employers, Shoor, Anandasagar and Piaseczny offer the following.
First relates to control ceded to a competent constructor.
“Simply hiring a contractor isn’t enough — owners must be able to demonstrate that they entrusted the work to a qualified constructor without interfering in day-to-day operations.”
Second, although there has been reaffirmation of the traditional understanding of roles and responsibilities in construction contracts, they say that at the same time, delegation and due diligence doesn’t mean owners are off the hook and can turn a blind eye.
“The City of Greater Sudbury successfully defended itself because it selected a contractor with experience, reviewed safety records and maintained reasonable oversight. Owners who fail to conduct proper due diligence upfront may find themselves in legal jeopardy.”
Third, it is critical to proactively manage legal risk.
“An ounce of prevention is worth a pound of cure,” Shoor, Anandasagar and Piaseczny write. “The cost of litigation, both financial and reputational, dwarfs the effort required to establish robust safety practices from the outset. Owners, constructors and employers should remind themselves of this case prior to the start of every new upcoming project. ”
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