Supreme Court finds Sudbury was an employer on jobsite where pedestrian was killed

SUDBURY, ONT. — A Supreme Court of Canada (SCC) decision has found the City of Greater Sudbury is responsible as an employer for work taking place on a city construction site where a deadly incident occurred in 2015.

The decision could have a significant impact for owners, employers and all parties on construction projects in terms of the overlapping duties and expanding the liability of project owners, construction companies and municipalities with respect to occupational health and safety in Ontario.

In the fall of 2015, the City of Sudbury contracted with Interpaving Limited to act as constructor to repair a downtown watermain. On Sept. 20, while driving a road grader in reverse through an intersection on Elgin Street, an Interpaving employee struck and killed a pedestrian.

According to the SCC judgment, the Ministry of Labour charged the city under Ontario’s Occupational Health and Safety Act (OHSA) for failing to ensure that certain safety requirements of the accompanying regulation had been met.

The city conceded it was the owner of the construction project and acknowledged it sent its quality control inspectors to the project site to oversee Interpaving’s contract compliance, but denied it was an employer, arguing it lacked control over the repair work and had delegated control to Interpaving.

As part of the decision, released Nov. 10, the SCC reviewed the occupational health and safety duties of owners, constructors and employers on construction sites.

It let stand the Ontario Count of Appeal finding that an owner, even if their role was limited to occasionally having employees onsite for quality assurance, has equal responsibility and liability under the OHSA as the constructor with whom the owner contracted to oversee the project in the first place, states a post on the McMillan LLP website.

“In dismissing the appeal, the SCC explicitly rejected the suggestion that a party must have ‘control over workers or the workplace’ to be an ‘employer’ and thus bear an employer’s duties and responsibilities under the OHSA,” the post states. “Furthermore, the SCC held that ‘an owner who contracts with a constructor is an employer,’ meaning that the City of Sudbury became an ‘employer’ when it contracted with Interpaving Limited, a specialty roadbuilding company, to be the ‘constructor’ on the project.”

The Daily Commercial News will further analysis on this story.