The Ministry Of Labour Is Appealing The Greater Sudbury Decision

When a business hires a contractor, is the business the Employer of its subcontractor and its subcontractor's workers under the Occupational Health and Safety Act1 (Act)?

The importance of the answer to this question cannot be overstated.

Depending on the answer, a business could well be responsible for protecting the health and safety of the subcontractor and its workers. Any failures in that regard could, on prosecution, attract penalties for individuals up to $100,000 and/or a year in jail, and corporations could face fines up to $1.5 million.

What has the traditional position been?

The law was set 27 years ago in the case of R. v. Wyssen.2 It provided that where businesses contract for work, they are the contractor's Employer under the Act. As a result, they are subject to all of the accompanying duties, including, amongst others, the duty to take take every precaution reasonable in the circumstances to protect workers.

How did the Greater Sudbury decision change the law?

The law developed in a nuanced way with the decision in R. v. Greater Sudbury (City).3 It looked past the parties' relationship itself and delved into the degree of control that a contracting business or owner exercised at a workplace. In doing so, it made control a critical factor in determining whether or not businesses were Employers at the workplace. Specifically, it found that if a business hired a contractor, relying on their expertise completely, and did not provide direct oversight or exercise meaningful control over the contracted work, the business may well not be an Employer vis a vis the contracted work.

Why was the Greater Sudbury decision important?

By inserting “degree of control” into the equation, the court opened the door for businesses to try and contract out of what had been their obligation to take direct and meaningful steps to protect the health and safety of the workers who were performing the contracted work. Simply put, the decision arguably created the potential for businesses to take a 'hands off' approach to contracting out work, and thereby limit their liability exposure under the Act.

Is the Greater Sudbury decision the law in Ontario?

Just over three weeks ago, Justice Brown of the Ontario Court of Appeal determined that the question of whether or not the element ofdegree of control ought to be imported into the definition of Employer under the Act was a question of sufficient interest to the public at large that satisfied the very high...