The End Of A Saga: Application Of Due Diligence Assessment Criteria For "Employers" In R v. Sudbury Upheld

• Published date: 22 April 2025
• Law Firm: McMillan LLP
• Author: Victor Kim, Patrick Pinho and Annik Forristal

Introduction

On March 31, 2025, the Ontario Court of Appeal (the "Court of Appeal") issued its long-awaited and highly anticipated decision, denying the request by the Ministry of Labour, Immigration, Training and Skills Development's (the "Ministry") for leave to appeal¹ the 2024 Ontario Superior Court of Justice's ("Superior Court") decision in R v Greater Sudbury².

As previously considered in our 2024 bulletin available here, the Superior Court held that the City of Greater Sudbury ("Sudbury"), as an employer under the Ontario Occupational Health and Safety Act³ (the "OHSA"), acted with due diligence, despite the fatal accident that occurred at one of its project sites.

As a result of the Court of Appeal's denial of the Ministry's leave to appeal, the Superior Court's findings and the resulting acquittal of several charges against Sudbury under the OHSA have been upheld, which should provide useful guidance for the owners, constructors, and employers in the construction industry together with improved certainty.

Background

Sudbury contracted with a general contractor, Interpaving Limited ("Interpaving"), to carry out a watermain repair project (the "Project"), with Interpaving acting as the "constructor" under the OHSA. Following a fatal accident with a pedestrian and a grader operated by an...