Construction Owners Take Note: Supreme Court Will Rule On Important OHSA Issue

• Published date: 10 March 2022
• Subject Matter: Employment and HR, Real Estate and Construction, Health & Safety, Construction & Planning
• Law Firm: Miller Thomson LLP
• Author: Ms Catherine Phelps

In Ontario (Labour) v Sudbury (City),¹ the Ontario Court of Appeal recently held that a construction owner may be liable for violations of Ontario's Occupational Health and Safety Act (the 'OHSA') on a construction project as an employer. On December 9, 2021, the Supreme Court of Canada granted leave to the City of Sudbury (the 'City') to appeal this notable decision.

The Facts

In 2015, the City entered into a contract with a general contractor, Interpaving Limited ('Interpaving'), to repair one of the City's water mains. While the City was the owner of the construction project, the contract between the City and Interpaving stipulated that Interpaving would assume control over the entire project, including ensuring that all health and safety requirements under the OHSA were met.

A fatal accident occurred on the project when a woman was struck by a road grader while crossing the street. Contrary to the OHSA, no signallers were present to assist the grader operator and the required fencing was not in place.

Notwithstanding that Interpaving was responsible for all health and safety obligations on the project pursuant to the contract, the City was charged with violations of the OHSA on the basis that it was both a 'constructor' and an 'employer' within the meaning of the legislation. The trial judge held that the City was neither an employer nor a constructor and so it owed no duties under the OHSA. The Crown appealed the trial judge's decision, first to an appeal judge and then to the Ontario Court of Appeal.

The Ontario Court of Appeal's Decision

On appeal, the Ontario Court of Appeal addressed the narrow issue of whether the City was an employer under the OHSA. The Court concluded that the City was an employer within the meaning of the OHSA, and as a result was liable for violations of the OHSA on the project site unless it could establish a due diligence defence.

The appeal turned on the definition of 'employer' in section 1(1) of the OHSA, which states:

'employer' means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services; ('employeur') . . .

The Court held that this definition of 'employer' covers two relationships: first, that of a person who employs workers and second, that of one who...