An appeal involving the City of Sudbury and Ontario’s Occupational Health and Safety Act (OHSA) has been granted leave to be heard before Canada’s highest court.
The Supreme Court of Canada’s (SCC) ruling in Ontario (Labour) v. Sudbury (City), 2021 ONCA 252 could have a significant impact on Ontario construction companies, project owners and municipalities.
It could also reverberate across Canada.
“I think the provinces mostly likely keenly affected are Nova Scotia and Prince Edward Island,” said labour lawyer Jeremy Warning, a partner in Mathews, Dinsdale & Clark LLP, a national labour firm with six offices across Canada.
Nova Scotia and P.E.I. both have OHS acts that are similar in wording to Ontario, but other provinces may also be impacted depending how the obligations of an employer are set out.
The case is controversial because it asks the SCC to reverse the Ontario Court of Appeal decision imposed on project owners who now can be considered employers and assume a responsibility for safety and health when traditionally the general contractor took on that obligation.
Warning said there is also a concern it places the discretion to determine who is an employer in the hands of Ministry of Labour inspectors and prosecutors depending on the work performed onsite and ultimately the liabilities that employers incur.
“We certainly realize the importance of this topic to our city and municipalities in general. However, we are unable to comment on litigation matters,” Maggie Frampton, manager of communications for the City of Greater Sudbury, said via email.
The Ontario case stems from a September 2015 fatality when a grader operator struck a pedestrian crossing at a traffic light in a construction zone. The grader operator was an employee of the general contractor Interpaving Ltd., hired by the city to do road and water main maintenance.
The Ontario Ministry of Labour charged both the city and Interpaving with violations under Ontario’s OHSA for failing to provide a signaller, not erecting a sturdy fence to separate the public from the construction site and not implementing a traffic protection plan. In 2018, Interpaving pleaded guilty to the charge of not providing a signaller and was fined $195,000 with the other two charges withdrawn.
The city was deemed to be both an employer and constructor within the OHSA but pleaded not guilty. At trial, the city was acquitted. The judge ruled there was no signaller and fencing but the city was neither an employer nor a constructor under the OHSA and therefore owed no duty to the act and that the city, if need be, could marshal a due diligence defence to the charges.
The Ontario Ministry of Labour appealed the trial court decision which kept traditional lines between the owner of a project and the general contractor intact and the higher court again sided with the trail judge. The ministry appealed again to Ontario’s Court of Appeal, where a decision in spring 2021 reversed the two lower court decisions.
The Ontario Court of Appeal judges considered mainly whether the municipality could be considered an employer under the OHSA, which is deemed to be public welfare legislation to be interpreted broadly to protect workers.
The judges found an “employer” in the OHSA “means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services.”
The definition encompasses both employing and contracting of workers, the court held, leaning on R. v. Wyssen, 1992 CanLII 7598 (Ont. C.A.), which covers the two relationships.
A person “who employs one or more workers” is therefore an employer for the purposes of the act and is responsible for ensuring compliance with the act in the workplace, the court held.
The appeal court held the OHSA sets out there can be an overlapping duty for health and safety and the multiple employers that could be on site. The Wyssen ruling states in the enforcement provisions in the act, employers are “virtually in the position of an insurer who must make certain that the prescribed regulations for safety in the work place have been complied with before work is undertaken by either employees or independent contractors.”
The Ontario appeal judges ruled: “In this case, there is no doubt that city inspectors — employees employed directly by the city — were present on the project site and performed a variety of tasks. Among other things, they monitored the jobsite for quality control purposes and monitored the progress of the work to confirm that the city was receiving the work it was paying for.”
The city filed to take the case to the SCC late last year and was recently granted leave it would be heard. Lawyer Ryan Conlin, a partner in Toronto-based Stringer LLP and one of the lawyers who pleaded the case on behalf of the city in the Ontario appeals court, said his firm will be acting as counsel again for the city in the SCC hearing. He was unable to comment any further.
But the decision has drawn concern and comment from other labour and employment lawyers. Warning, John Illingworth and Cheryl Edwards blogged that the decision “should be of concern to all ‘owners’ and ‘employers’ as it could significantly expand liabilities under the Ontario Occupational Health and Safety Act on construction projects, and affect advance planning and structures for construction project safety and management by parties, particularly owners.”
Warning said he is hoping the review by the SCC will place the ruling in a contextual basis.
“It is a very narrow ruling,” he said, as it only focuses on determining whether the municipality meets the definition.
The courts have fleshed out other such rulings.
Warning said one such ruling occurred in Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board), 2011 ONSC 3057. A guest at the resort drowned in the pool and an inspector for the MOL learned of it and cited the report for not reporting the fatal incident under OHSA requirements.
The inspector held the person did not have to be an employee, the pool was a workplace and it did not matter there were no employees present. The Ontario Labour Relations Board supported the inspector and subsequent judicial reviews of the decision occurred landing it before the Ontario Supreme Court in 2013, which placed the situation in context.
It determined the board’s interpretation of s. 51(1) was unreasonable, as it led to the conclusion that “every death or critical injury to anyone, anywhere, whatever the cause, must be reported.”
A proper interpretation of s. 51(1) “requires that there be some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that site. There was no such nexus here.”
Warning said cases before the SCC can take a year for a decision. If the SCC sides with the lower courts, “that will be the end of it,” he said. But, if the ruling stands, the case would be remitted to a lower court to hear a due diligence defence and the onus of project owners for health and safety will be broadened.
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