After a wait of about a year, Canada’s highest court has finally issued its ruling in a case that had OHS afficionados—and what reader of Field Law’s OHS communiques is not?— on the edge of their seats.  In what promised to be a far-reaching case exploring the intricacies of the obligations of owners and employers, the Supreme Court of Canada decision in R. v. Greater Sudbury (City) has unfortunately proven to be much more complicated than was hoped. 

Part of this complication lies in it being a ‘split decision’, not all the justices agreeing as to the outcome or even some of the principles leading to the outcome.  More troublesome, owing to the retirement of Mr. Justice Russell Brown, the decision was not rendered by an odd-number panel but rather an even number of judges.  Without a ‘tiebreaker’, we are left with one point of view made of the four judges who agreed with Alberta’s Justice Martin (we will refer to them here as the “Plurality” as opposed to the “majority”) while other views were expressed by a group of three united dissenters while a lone dissenter, Justice Côté, agreed with the dissenters on some points but not all. 

Lastly, owing to Supreme Court procedure which holds that where a clear majority cannot be found the appeal is not granted, the decision of the Ontario Court of Appeal which found the City guilty of breaches as an “employer” stands.  Importantly, the Ontario Court of Appeal relied upon its 1992 decision in R v. Wyssen, which rejected the link between control over a workplace and liability as an employer, describing the employer as “the virtual insurer or guarantor” of safety.  However, this view of the employer as guarantor or insurer has been rejected by the Alberta courts.

So what does Greater Sudbury mean for Albertans?  Let's explore…

Facts

In February 2015, the City of Sudbury entered into a contract with the construction company, Interpaving, to undertake a construction project in Greater Sudbury. The contract stipulated that Interpaving was to assume control over the entire project, including the role of “constructor” under the Ontario Occupational Health and Safety Act (the “Act”). They were also to assume the responsibility of ensuring the requirements of the Act and its regulations were met.

Unfortunately, in September 2015, a pedestrian was struck and killed by a grader being driven in reverse by an Interpaving employee. The Ministry of the Attorney General (Ministry of Labour, Immigration, Training and Skills Development) (“Ministry”) charged both Interpaving and the City.

Procedural History

At trial, the City was acquitted of all charges as it was found the City was not an “employer”. This finding was based on the lack of control of the conduct of the workplace and the resultant exclusion from the safety obligations placed on employers by the Act.

Following an unsuccessful appeal at the provincial offences appeal court, the Ministry appealed to the Ontario Court of Appeal. The Court of Appeal overturned the lower court decisions, concluding that the City had indeed acted within the meaning of “employer” in s. 1(1) of the Act since it had employed Quality Control inspectors—that is, “workers”—at the project site, rendering it liable for violations of the Act, subject to a due diligence defence.

Supreme Court of Canada - The Plurality Opinion

The Plurality agreed with the Court of Appeal and held that the City was an “employer” and did breach its duty under section 25(1)(c) of the Act that employers are to “ensure that ... the measures and procedures prescribed [in the applicable OHS Regulation] are carried out in the workplace”. The Plurality held that as legislation of public welfare, the Act allocates various occupational health and safety duties among various classes of ‘workplace actors’. Thus, owners, constructors and employers will often have overlapping and concurrent duties – several different actors may be responsible for the same protective measures. Under this “belt and braces” approach, an entity which fails to safeguard health and safety cannot point to another’s failure as an excuse for its own.

Since the Plurality determined that control is not a required element to be considered an “employer” under the Act, the Ministry did not need to prove the City had control over the workers involved in the accident to be liable for the attached OHS offence. As the Ministry was able to establish a breach of the City’s employer duties, the burden now shifts to the City to prove on a balance of probabilities that “every precaution reasonable in the circumstances” was taken.

In the view of the Plurality, the defence stage of the analysis is where an accused employer or owner can present a due diligence defense to avoid liability. They believe this is both logical and preferable as the employer is the workplace actor best suited to provide evidence demonstrating they lacked control over a specific group of workers or the worksite as a whole.

The Plurality’s conclusion sent the issue of the City’s due diligence defense to the provincial offences appeal court (Ontario Superior Court of Justice) as they believe it is for the original fact-finder in this matter to assess whether the City, as an employer, had control over the worker driving the grader as well as the workplace.  

Dissent from Justices Rowe, Karakatsanis and O’Bonsawin

This dissenting opinion, written by Mr. Justice Rowe and Madam Justice O’Bonsawin, agrees the City is an “employer” under s. 1(1) of the Act due to its relationship with the quality control inspectors it sent to the worksite. However, they did not find that the owner-constructor relationship gives rise to an employment relationship under the Act. Further, they disagreed with the Plurality’s interpretation of the Act and indeed found “it would be absurd to interpret [the applicable OHS offence] as obligating every employer at a construction project to ensure compliance with all of the measures contained in the Regulation.” They advocate for a functional approach where an employer must comply with the measures which apply to them; conversely, there is no duty requiring employers to ensure compliance with measures which do not. Under this approach, an employer that is not responsible for ensuring compliance with a certain measure will not have to defend themselves from liability if there is a breach of that measure.  

Lastly, this dissenting group takes issue with the Plurality position of leaving the analysis concerning an employer’s degree of control to the due diligence defence stage. Such an approach would flip the structure of offences on its head leaving every employer involved in a project subject to offences and, now an accused, having to ‘bear the burden of pulling themselves out of the ambit of the offence.” They state that it is best for a measure to relate to an employer’s specific work as this will provide them with a greater understanding of their responsibilities.

In the view of this dissenting group of justices, the matter should be sent back to the provincial court to determine whether the relevant offence of the Regulation was related to the City and thereby left it with duties under the Act.

Dissent from Justice Côté

Lastly, in dissent, Justice Côté found that the City was not an “employer” under the Act and thus, should not share statutory liability for Interpaving’s safety violations. In Justice Côté’s view, the City’s hiring of Interpaving reflects an owner-constructor relationship, not an employer-worker relationship. The obligations prescribed by the Regulation were the responsibility of the constructor and/or the employers who performed the relevant construction work. Since the City had no involvement or control over the work, they were not an employer at the construction project.

Justice Côté would allow the appeal and restore the acquittals entered by the trial court on all charges against the City.

The Impact of This Decision on Albertans

Owners, employers and prime contractors in Alberta may be left scratching their heads as to how the Supreme Court of Canada decision impacts them.

As it stands, an owner of a construction project will be considered an “employer” if they send themselves or workers to a worksite. The Plurality in Sudbury found that the employer doesn’t need any control over the workers on a construction project where an OHS breach occurs to be found liable. This ruling seems to differ from standard practice and carefully crafted legislation.

In circumstances where an owner takes a hands-off approach to a construction project and has contractually delegated control to a more involved party or has chosen a prime contractor, they may not be off the hook if there is an OHS breach. The Plurality believes the “belt and braces” approach to occupational health and safety requires all workplace participants to share in the responsibility for workplace safety regardless of how much control they have. Now, an owner of a project may unknowingly become a “belt” or a “brace” and share responsibility for OHS compliance in any scenario where they are found to be an employer under the Act.

In Alberta, when there are two or more employers conducting work at the same site, there must be a prime contractor. The prime contractor is responsible for establishing a system or process to ensure compliance with the OHSA. However, as Justice Martin explains in Sudbury, even though a certain party may have the greatest control over the project, occupational health and safety does not create distinct “silos of responsibility” for different actors.

Effectively, everyone involved in construction projects in Alberta needs to be cautious of their OHS responsibilities as they may have more responsibilities than originally thought.

When an Accident Occurs, Does a Lack of Control Matter?

Although the Plurality found that control was not required for the Ministry to establish the elements of certain OHS offences against an employer, they held a lack of control is still relevant when it comes to an accused’s defence.

If an accused is found liable for breaching OHS obligations, the Plurality has expressed certain considerations that might impact their due diligence defense.  

Relevant considerations might include:

• Whether the owner pre-screened contractors or persons who are to be responsible for meeting the owner’s obligations to verify they have superior expertise, a track record free of prior convictions for breaches of the Act, and the capacity to ensure compliance with the Act and Regulations
• Whether an owner and employer informed the prime contractor or those who have contractually undertaken responsibility for the project of any worksite hazards
• Examining the contractual agreements between all parties to determine levels of responsibility and involvement in the project
• Who is to be responsible for addressing and remedying any identified safety concerns

Although the Plurality decision seems to place enhanced responsibilities on owners in theory, it remains to be seen how different an owner’s responsibilities will be in practice. One thing we do know is that an owner should be mindful of the control they are exercising on a project as the greater control one uses, the more difficult it becomes to present a due diligence defence if an accident occurs. It would be wise to keep good records of which worksite actors have done what throughout a project.

Ultimately, the Supreme Court decision leaves some uncertainty as to who is responsible for ensuring OHS compliance on a large-scale project with multiple actors. As the dissent put it, “If employers do not know who is a belt or a brace, then the safety system cannot function at all and leads to confusion”.

For assistance drafting and reviewing contracts to help ensure a clear delineation of OHS responsibilities, or in the event you need legal assistance in preparing a due diligence defence, contact Steve Eichler in Calgary, Joël Michaud in Edmonton, or any member of Field Law’s Occupational Health + Safety Group for assistance.