Safety Advisory Foundation for Education & Research

he Supreme Court of Canada has upheld a ruling that the City of Greater Sudbury was responsible under the Occupational Health and Safety Act for a fatal accident involving a contactor and a pedestrian that took place during a water main repair project in 2015.

The case originated when an employee of Interpaving Limited, contracted by the city to repair a downtown water main, fatally struck Cecile Paquette — who was walking across the street — while operating a road grader in reverse.

Following this incident, the Ministry charged the City under section 25(1)(c) of Ontario’s Occupational Health and Safety Act for failing to meet certain safety requirements.

The City, acknowledging its role as the owner of the project but denying being an employer, contested the charge, stating it had delegated control to Interpaving.

Initially, a provincial court trial judge acquitted the City, accepting the argument that Interpaving had direct control over the worksite and workers, absolving the City of being considered an employer under the Act. However, this decision was later overturned by the Court of Appeal, which found the City liable as an employer.

In a divided decision, the Supreme Court upheld the Court of Appeal’s ruling, emphasizing the broad scope of the definition of “employer” under the Act.

“It follows that a person can be an employer under the Act, even where they lack control over the worker on the workplace,” the court said.

It found that the city was “an employer of the inspectors, whom it employed directly and dispatched to the construction project.” Further, it ruled the city was “an employer of Interpaving, with whom it contracted to undertake the construction project.”

The court pointed out that ensuring workplace safety is a shared responsibility among various parties, including owners, employers, and constructors. This “belt and braces” approach to occupational health and safety implies that multiple entities may be held accountable for ensuring the safety of a workplace, it said.

The Supreme Court clarified that the city’s lack of direct control over the workers or the workplace does not exempt it from its obligations as an employer. The Act is designed to allocate health and safety duties among different workplace actors, thereby promoting a high standard of protection for workers, it said.

The case now returns to the provincial offences appeal court to address the question of whether the City of Sudbury exercised due diligence in its efforts to ensure workplace safety.

The top court noted that the city could still “escape liability” in this case by proving that it exercised due diligence.


Courtesy OHS Canada