On November 10, 2023, the Supreme Court of Canada (“SCC”) ruled that an employer was strictly liable for a general contractor’s failure to follow safety regulations which resulted in a person’s death, despite that the employer engaged the general contractor to be the constructor for the construction project and had no control over the constructor’s workers who failed to follow the applicable safety requirements. In R. v. Greater Sudbury, the SCC held that the City of Sudbury (the “City”) was strictly liable for the failure of Interpaving Limited (“Interpaving”) to meet certain safety requirements that apply to construction projects under the Occupational Health and Safety Act (the “OHSA” or “Act”), which resulted in a pedestrian being fatally struck by a road grader, subject to the City successfully establishing a due diligence defence. This is because the SCC found that the City was an “employer” for the purposes of the Act, such that it was required to ensure that all prescribed safety measures and procedures were complied with at the construction project, despite the City engaging Interpaving to be the constructor for the project.
As further discussed below, this decision is extremely unfavourable to employers who engage third parties to complete construction projects from time to time.
Background
In February 2015, the City engaged Interpaving to complete a construction project which involved repairing a water main in downtown Greater Sudbury. The City’s contract with Interpaving provided that Interpaving would assume control over the entire project as the “constructor” (a defined term/role under the OHSA), such that Interpaving had ultimate responsibility for ensuring that all applicable health and safety requirements under the OHSA were followed at the project. Although no City employees were involved in performing the construction work itself, the City sent quality control inspectors it employed to the project from time to time to ensure that the work was being performed in accordance with the contract.
In September 2015, a pedestrian was fatally struck by a road grader that was being driven in reverse by an Interpaving employee while the pedestrian was attempting to cross an intersection within the construction zone. Crucially, at the time of the accident, there was no fence between the construction project and the active public intersection, despite that one was required by s. 65 of O. Reg. 213/91: Construction Projects (the “Regulation”). Moreover, there was no signaller assisting the employee driving the road grader at the time of the accident, despite that one was required under s. 104(3) of the Regulation.
Following the accident, the Ministry of the Attorney General (the “Ministry”) charged both Interpaving and the City for breaching s.25(1)(c) of the OHSA. This provision requires “employers” to ensure that all prescribed safety measures and procedures are met in a workplace. Notably, s. 25(1)(c) has previously been established to be a “strict liability offence”, meaning that the Ministry only needs to prove beyond a reasonable doubt that the employer failed to ensure that the safety requirements were met—it does not need to prove that the employer acted intentionally, recklessly, or negligently in breaching the requirement. However, there is also a due diligence defence under s. 66(3)(b) of the OHSA which applies where the employer can prove that they took “every reasonable precaution in the circumstances”.
Interpaving was tried and convicted of breaching s.25(1)(c), whereas the provincial offences trial court acquitted the City because it found that the City was not an “employer” for the purposes of s.25(1)(c). This was because it was Interpaving and not the City that had direct control over the construction workers and the intersection where the accident took place. Further, the trial court held in the alternative that the City should be acquitted under s. 66(3)(b) because it acted with due diligence by taking every precaution reasonable in the circumstances.
The Ministry appealed the City’s acquittal to the provincial offences appeal court, which upheld the acquittal on the basis that the City was not an “employer” in the circumstances, but it did not consider the City’s due diligence defence. The Ministry appealed once again, this time to the Ontario Court of Appeal (the “ONCA”). The ONCA unanimously allowed the appeal, set aside the City’s acquittal, and remitted the due diligence issue back to the provincial offences appeal court for determination. In turn, the City appealed the ONCA’s decision to the Supreme Court of Canada (the “SCC”).
The SCC’s Decision
In a split decision, the SCC affirmed that the City was an “employer” and that it breached its duty under s.25(1)(c) of the OHSA. The SCC dismissed the City’s appeal, and it remitted the issue of the City’s due diligence defence to the provincial offences appeal court.
In reaching this decision, the SCC held that an owner of a construction project is an “employer” for the purposes of s.25(1)(c) where it meets the definition under s. 1(1) of the Act, which defines an “employer” as including “a person who employs one or more workers or contracts for the services of one or more workers”. The SCC further held that an owner meets this definition where: (i) they employed workers at a construction project; or (ii) they contracted for the services of a worker at the project, which includes engaging a constructor to complete the project. Consequently, the SCC found that the City was an employer for the purposes of s.25(1)(c) because: (i) it directly employed the quality control inspectors that it sent to the project; and (ii) it was an “employer” of Interpaving by virtue of it engaging Interpaving as the constructor for the project.
The SCC further held that the City having no control over the construction workers or project was legally irrelevant to whether it breached its obligations as an employer under s.25(1)(c). This is because there is no explicit reference to control in s.25(1)(c) or the definition of “employer” under s.1(1). Moreover, the SCC held that this interpretation is consistent with the purpose of the OHSA and the “belt and braces” approach to fulfilling that purpose. Namely, the OHSA seeks to promote a reasonable level of health and safety protection for workers via an approach involving various concurrent and overlapping duties, such that several different actors may be responsible for the same safety measures. The intent of this approach is that the failure of one party to meet their duties may be compensated for by another party meeting their concurrent/overlapping duty, and to prevent parties from pointing to the failures of others as an excuse for their own failures.
On the other hand, the SCC held that an employer’s control or lack of control is relevant to whether the employer can successfully establish a due diligence defence under s. 66(3)(b) by proving it took all reasonable precautions in the circumstances. In particular, where the underlying causes of the offence are beyond the control of the accused, then they will be more likely to successfully establish a due diligence defence.
In the result, the SCC affirmed that the City breached its duties as an employer under s.25(1)(c) of the OHSA, it dismissed the City’s appeal, and it remitted the question of the City’s due diligence defence to the provincial offences appeal court.
The Bottom Line
This decision is extremely unfavourable to employers which may engage third parties to complete construction projects from time to time. This is because such employers will now be strictly liable for any failure of the third-party constructor to comply with all applicable health and safety regulations, unless they can successfully establish a due diligence defence after being charged. This is even the case where the owner/employer has no expertise in construction-specific safety regulations and no control over the construction workers employed by the constructor.
Notably, there were two dissenting opinions which both provide strong rationales for why the City should have been acquitted. For example, the dissenting opinion authored by Justices Rowe and O’Bonsawin argued that employers should only be liable for breaching regulatory measures under s.25(1)(c) where those measures apply to them, and that measures which do not specify who they apply to should only apply to an employer which had control over the relevant work/workers. Moreover, they argued that it would be absurd to interpret s.25(1)(c) as requiring every employer at a construction project to be responsible for everything anyone at the project does, and that holding employers liable for the failures of others to follow safety measures over which they have no control does nothing to promote health and safety.
Given that this was a split 4-4 decision (with the Chief Justice’s decision breaking the tie), there is some hope that the SCC revisit this issue in the future and follow the persuasive reasoning of the dissenting justices. That said, as the law currently stands, employers that engage third parties to complete construction projects will unfortunately be strictly liable for the breach of any applicable health and safety measures at the project, subject to them successfully establishing a due diligence defence.
If you have any questions regarding the above or require expert legal representation, please do not hesitate to contact us.
