No Requirement for Control Over a Construction Project to be Considered an “Employer” under the Occupational Health and Safety Act: Supreme Court

In a past Focus Alert, we discussed the Ontario Court of Appeal’s decision in Ontario (Labour) v. Sudbury (City). In that case, the province’s highest court determined that the City of Sudbury (the “City”) was not only the owner but also an employer on a construction project for the purposes of the Occupational Health and Safety Act (the “OHSA”). The decision meant that the City had additional statutory health and safety obligations as an employer and could potentially be held liable as such under the OHSA.

On November 10, 2023, following an appeal by the City to the Supreme Court of Canada (the “SCC”), the country’s highest court released its decision in R. v. Greater Sudbury (City), confirming the Ontario Court of Appeal’s decision regarding the overlapping duties of owners, constructors and employers with respect to occupational health and safety on construction sites in Ontario.

Background

The proceedings arose following the death of a pedestrian who was struck by a road grader at an intersection in the City. At the relevant time, the road grader was being operated by an employee of a general contractor who had been retained by the City to undertake road and water main repairs.

Following an investigation by the Ministry of Labour (the “Ministry”), both the City and the general contractor were charged with violations of O. Reg. 213/91, Construction Projects made under the OHSA. Notably, the City was charged as both a constructor and as an employer.

The provincial offences court held that while there were violations of the OHSA, the City was neither a constructor nor an employer, and therefore did not have any duties under the OHSA. The court further held that, in any event, the City had a due diligence defence. The provincial offences appeal court upheld the lower court’s decision but did not address the finding that the City had acted with due diligence.

The Crown appealed the matter to the Ontario Court of Appeal, arguing that the provincial offences court had erred in finding that the City was not an employer under the OHSA. As previously noted, the appellate court determined that the City was in fact not only the owner but also an employer. Accordingly, the decision of the provincial offences appeal court was set aside.

Supreme Court Decision

In a split (4-4) decision, the SCC dismissed the City’s appeal, and the matter was remitted to the provincial offences appeal court in order for the City’s due diligence defence to be heard.

While the provincial offences court had initially acquitted the City from the charges filed against it as an employer because the general contractor (rather than the City) had direct control over the workers and the construction site, the SCC rejected this approach, stating:

“While control over workers and the workplace may bear on a due diligence defence, nothing in the test, context or purpose of the [‘OHSA] requires the Ministry to establish control over the workers or workplace to prove that the City breached its obligations as an employer under s. 25(1)(c).”

The SCC continued:

The [OHSA] seeks to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace and it fulfills its public welfare purpose by allocating various occupational health and safety duties among various classes of workplace actors, including constructors, employers and owners. These duties are often concurrent and overlapping: several different actors may be responsible for the same protective functions and measures – this is known as the “belt and braces” approach to occupational health and safety. Under this approach, where multiple workplace entities fail to safeguard health and safety, they cannot point to others’ failures as an excuse for their own; each workplace participant must ensure that the workplace is safe. […]

In the end, the SCC held that an owner who contracts with a third-party contractor to undertake a construction project retains obligations as an employer under the OHSA to ensure worker health and safety in the workplace. In the circumstances, the City was therefore an employer and could be held liable as such under the OHSA, regardless of whether it had exercised control over the general contractor’s workers or the construction site where the incident had occurred.

In Our View

The recent decision of the SCC confirms that there is no requirement to prove that an owner on a construction project exercises control over the workers or the workplace in order for that owner to also potentially be subject to the obligations of an employer under the OHSA. This is the case both where the owner employs workers directly at a construction site, and where the owner contracts for the services of a third-party contractor.

As a result, when faced with charges alleging an employer has violated one or more provisions of the OHSA, a court will simply examine the following:

  1. Whether the Ministry has proven beyond a reasonable doubt that the OHSA applied to the accused because the accused was an employer as defined in that statute (without any requirement to establish “control”),
  2. Whether the Ministry has proven beyond a reasonable doubt that the accused violated one or more provisions of the OHSA (again without any requirement to establish “control”), and
  3. Whether the accused has proven on a balance of probabilities that it should avoid liability because it exercised due diligence under the OHSA.

It is only at the last stage – i.e., at the due diligence defence stage –  that it will be open to the accused to attempt to establish that its lack of control proves that it took all reasonable steps to protect worker health and safety on the construction site.

This decision will have significant ramifications in the construction industry, including that an owner on a construction project could now potentially be held liable for any workplace safety violations committed by a third-party contractor, subject to the defence of due diligence. Considering this increased risk of legal exposure for owners, retaining a general contractor and allowing them to assume operational control over a construction project may very well no longer insulate owners from the risk of liability under the OHSA.

For more information, please contact Paul Lalonde at 613-795-1752, Sébastien Huard at 613-293-5295 or Neil Dzuba at 613-415-9582.

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