Supreme Court of Canada denies rehearing in R v Greater Sudbury

On November 10, 2023, the Supreme Court of Canada (the “SCC”) released its decision in R v Greater Sudbury (City), 2023 SCC 28 (“Sudbury”).

Given that the SCC was split 4-4 on the key issue of whether the City of Sudbury (the “City”) was an “employer” the City filed a motion for re-hearing of the appeal. On February 15, 2024, the SCC denied the City’s motion for re-hearing, meaning that the SCC’s decision on the matter will stand and remain the law in Ontario.

The denial of the motion confirms that, as per Ontario’s Occupational Health and Safety Act (the “Act”), the term “employer” should be broadly interpreted and all employers on a project site have responsibility for ensuring compliance with Ontario’s Act and its Regulations.

Background

Our previous post delves further into the circumstances of the matter and the SCC’s decision. In Sudbury, the City had contracted with Interpaving Limited (“Interpaving”) to repair a downtown water main. During the repairs, an Interpaving employee struck and fatally injured a pedestrian while reversing a road grader into an intersection.

The Ontario Ministry of the Attorney General charged both the City and Interpaving as “employers” under section 25(1)(c) of the Act for failing to ensure certain regulated safety requirements were adhered to. Though Interpaving was convicted of this offence, the City denied it was an “employer” as defined under the Act, as it had delegated all control over the project to Interpaving. Though the City was initially acquitted at Provincial Court, the Ontario Court of Appeal overturned the acquittal, finding the City to be an “employer” under the Act. The City thus appealed to the SCC.

The main question before the SCC was the role the issue of control should have in determining who an “employer” is in the context of regulatory prosecutions under the Act. The plurality of justices held that the issue of control has no effect in determining whether a party is an employer; a person or entity will be held to be an employer if they employ one or more workers or contract for the services of one or more workers.

The SCC was evenly split on the question of whether the City was an employer. Given the equal division, the Ontario Court of Appeal’s decision remains the law of the Province of Ontario and remains persuasive throughout the country.

Key takeaways

Sudbury creates significant complexity for project owners and those working in the construction industry with multiple employers. Given the Plurality’s emphasis on due diligence, project owners would be wise to place additional emphasis on systems in place to evaluate contractor safety programs and to enforce safety requirements at their workplaces and work sites.

As Sudbury is specific to Ontario’s Act and its Regulations, employers need to understand how their applicable legislation for their worksites deals with the element of control and liability. Where an employer is permitted to delegate control under the applicable legislation, it should be made clear who has control of the worksite and sufficient oversight should be put in place to ensure contractors are qualified and performing work safely.

The MLT Aikins Occupational Health and Safety (OHS) practice group has considerable experience in helping employers, contractors and owners design legally compliant due diligence and compliance programs in the safety and construction context. Our OHS practitioners also have significant experience representing companies that have suffered an incident on the work site or are being prosecuted as a result of such an incident. Please contact our OHS team for more information.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

Authors: Curtis Unfried, John Agioritis, Jennifer Sokal, Meghan Johnson