The Supreme Court issued its decision in R v. Sudbury on Friday November 10, 2023 re: “employer” liability under the Ontario Occupational Health and Safety Act.
In a split decision, the Supremes held that the City of Sudbury was an “employer” under the OHSA because not only did it employ persons who did site inspections for quality control, but also simply because the City of Sudbury hired Interpaving Limited, a specialty road contractor that was the designated “constructor”.
That’s right – just hiring a contractor to perform construction work as the “constructor” made the City of Sudbury an “employer” – see paragraph 22 of the decision. (Link below)
The OGCA is certain this decision will lead to the following:
- Unnecessary proceedings where owners are charged along with contractors and constructors by the Ministry of Labour, Immigration, Training and Skills Development (MLITSD) and;
- Owners needed to put up a due diligence defense even though the owner had no control over the site whatsoever.
Find below is an excerpt from a McMillian LLP article, that will be more comprehensive and will be issued shortly:
“SCC Decision Released: Broadening of Liabilities Under OHSA Confirmed
On November 10, 2023, the Supreme Court of Canada (“SCC”) released its highly-anticipated decision on Ontario (Labour) v Sudbury (City). On appeal from the Ontario Court of Appeal (“ONCA”), previously analyzed by McMillan LLP, the SCC reviewed the intertwined occupational health and safety duties of owners, constructors, and employers on construction sites. In doing so, the SCC let stand the ONCA finding that an owner, even if their role was limited to occasionally having employees on site for quality assurance, has equal responsibility and liability under the Ontario Occupational Health and Safety Act (“OHSA”) as the constructor with whom the owner contracted to oversee the project in the first place.
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.
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, an independent roadbuilding company, to be the “constructor” on the road repair project.
However, the SCC did provide additional analysis and insights on the due diligence defense that an “employer” may raise, and specifically held that “control” may be a relevant factor in that analysis, even if not relevant when determining who is an “employer” under the OHSA.
Signaling a broadening of liabilities under the OHSA as they have been commonly understood, the SCC decision is expected to have a significant impact for all parties on construction projects, and may potentially be used to broaden liabilities in other contexts as well. McMillan LLP will be conducting a deep dive into the decision to provide more guidance to OGCA members on its key takeaways. Stay Tuned!
To review the entire Supreme Court’s decision in R v. Sudbury CLICK HERE.
Should anyone have any questions, or require any further assistance please contact Giovanni Cautillo at giovanni@ogca.ca.