The Newest Word In Regulatory Offences (R. v. City Of Greater Sudbury)

• Published date: 03 January 2025
• Law Firm: Gardiner Roberts LLP
• Author: Mr Kenneth Jull

The Supreme Court of Canada in 2024 delivered an important decision in the area of regulatory prosecutions in the case of R. v. Greater Sudbury (City).¹ This appeal arose from a fatal accident and concerned the proper interpretation of Ontario's Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("Act").

The Corporation of the City of Greater Sudbury contracted with Interpaving Limited to act as constructor to repair a downtown water main. An Interpaving employee tragically struck and killed a pedestrian when driving a road grader, in reverse, through an intersection. Contrary to the accompanying regulation, Construction Projects, O. Reg. 213/91 ("Regulation"), no fence was placed between the construction project workplace and the public intersection, and no signaller was assisting the Interpaving worker (see ss. 65 and 104(3)). In separate proceedings, Interpaving was tried and convicted for breaching the duty of employers under s. 25(1)(c) of the Act to "ensure that ... the measures and procedures prescribed [in the Regulation] are carried out in the workplace".

The legal issue on the appeal concerned the statutory liability, if any, of the City as an employer for breaching this same duty. In response to being charged and prosecuted by the Ontario Ministry of the Attorney General (Ministry of Labour, Immigration, Training and Skills Development) ("Ministry") under s. 25(1)(c), the City conceded it was the owner of the construction project and acknowledged that it sent quality control inspectors to the project, but denied that it was an employer, arguing that it lacked control over the repair work and had delegated control to Interpaving.

Justice Martin J. (Wagner C.J. and Kasirer and Jamal JJ. concurring) provided the short answer in the following paragraph:

The short answer is that while control over workers and the workplace may bear on a due diligence defence, nothing in the text, context or purpose of the Act requires the Ministry to establish control over the workers or the workplace to prove that the City breached its obligations as an employer under s. 25(1)(c).²

I A Broad definition of "employer" does not require the prosecution to prove control

The Supreme Court embraced a broad definition of "employer" without reading in a requirement of control:

In s. 1(1), the Act defines "employer" broadly ' without any reference to control ' and charges all employers to uphold several statutory duties. There is simply no reason to embed a control requirement into the definition of an "employer" or graft a control requirement onto s. 25(1)(c) when the legislature deliberately chose not to do so. Indeed, diminishing an employer's duties by reading in a control requirement under either or both provisions would thwart the purpose of this remedial public welfare legislation.³

The Court points out that the absence of a control test is consistent with the general law in relation to independent contractors:

Second, at common law, a person's relationship with an independent contractor is typically characterized by a lack of control on the part of that person over the contractor (671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, at paras. 33-48). The phrase "contract for services" is used, at common law, to refer to such relationships. Comparatively, "contract of service" is used to denote an employment agreement. By referring to a "contract for services" in the definition of "employer", the legislature signaled its intent to capture employer-independent contractor relationships under the "employer" definition (Wyssen, at pp. 196-98).⁴

II The Safety valve of Due diligence

The Court recognizes that such a wide definition requires a safety valve, and that mechanism is the due diligence defence:

Third, the existence of the due diligence defence in s. 66(3)(b) of the Act is relevant context because it means that employers who breach s. 25(1)(c) will not be subject to penalties under the Act if they can show they took all reasonable steps to avoid the breach. Section 66(3)(b) therefore functions as a safety valve, in which the presence of control may be a factor in assessing due diligence. As a result, there is no justification for narrowing the offence under...