Owners can mitigate OHSA risk created by OCA in Ontario v. Sudbury

By Julius Melnitzer | May 20, 2021

For all the brouhaha about what the Ontario Court of Appeal (OCA) did or didn’t do in Ontario (Labour) v. Sudbury (City), or what courts might do in the future, what transpired is really quite simple: a unanimous Court said that an owner whose direct employees (as opposed to third party contractors, an entirely different issue) are present at a workplace and perform work there are “employers” who have responsibilities and liabilities under the Occupational Health and Safety Act (OHSA). This whether or not the owner had hired a “constructor” (think “general contractor”) for the project.

“The Court of Appeal’s decision that an owner can be an ’employer’ who must ensure safety on the project, without considering the sphere of operations or other contextual factors like control, could significantly expand liability,” says Jeremy Warning, a partner at Mathews, Dinsdale & Clark LLP in Toronto.

The case arose when a road grader struck and killed a woman in downtown Sudbury. Interpaving Limited, whom the City of Sudbury had contracted to complete road repairs, employed the driver. For its part, the City employed inspectors who attended the site; their duties included quality control and monitoring the work to ensure that the City was receiving what it was paying for.

The Ministry of Labour (now the Ministry of Labour, Training and Skills Development) charged Interpaving but also charged the City as an “employer”. The Ministry relied on the OHSA provision that inclusively defines an employer as “a person who employs one or more workers” at a workplace. The trial judge convicted Interpaving, but acquitted the City on the basis that the City was not an “employer”. The Superior Court dismissed the Crown’s appeal of the acquittal, but the Court of Appeal allowed a further appeal and remitted the case to the Superior Court to consider the City’s due diligence defence.

Here’s the heart of the Court of Appeal’s decision:

In this case, there is no doubt that City inspectors – employees employed directly by the City – were present on the project site and performed a variety of tasks. Among other things, they monitored the job site for quality control purposes and monitored the progress of the work to confirm that the City was receiving the work it was paying for. Plainly, the City employed one or more workers at the project site within the meaning of s. 1(1). It is therefore an employer for the purposes of the Act and . . . that is sufficient to dispose of this appeal. The exemption in s. 1(3) [of the OHSA], which precludes an owner from becoming a constructor by engaging a person to oversee quality control, does not preclude owners from becoming employers.

The decision, however, appears to be a departure from the court’s usual approach to health and safety cases. Here, Warning cites the OCA’s 2013 decision in Blue Mountain Resorts Limited v. Ontario (Labour). The Divisional Court had ruled that employers’ duty to report all fatal and critical injuries at a workplace extends beyond workers to members of the public where the incident arises from hazards or risks to which workers are vulnerable.

But the OCA saw things differently.

“The interpretations (the Divisional Court and OLRB) gave to s. 51(1) of the OHSA would make virtually every place in the province of Ontario (commercial, industrial, private or domestic) a ‘workplace’ because a worker may, at some time, be at that place,” Justice Robert Blair stated. ”This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported. Such an interpretation goes well beyond the proper reach of the Act and the reviewing role of the Ministry reasonably necessary to advance the admittedly important objective of protecting the health and safety of workers in the workplace. It is therefore unreasonable and cannot stand.”

In the Court of Appeal’s view, an incident was not reportable unless there was “some reasonable nexus between the hazard giving rise to the death” and “a realistic risk to worker safety at that site”.

“The Court could have taken a very literal approach in Blue Mountain, but chose to read the legislation in the context of the facts,” Warning says. “That’s why it’s significant that the court in Ontario v. Sudbury did not say that contextual factors were irrelevant.”

As Warning sees it, Ontario v. Sudbury presented “challenging” facts.

“The City may have been involved in a number of ways that took it out of the stereotypical owner’s role that weighed in the court’s analysis,” he says.

Sahil Shoor, a partner in Gowling WLG’s Waterloo Region office, believes that future jurisprudence may develop along previous lines that exempt owners from liability where their obligations as an “employer” are so limited that they exercise no “control” over a project.

Still, the uncertainty is such that owners should consider revising existing practices for construction project monitoring, quality control, and safety.

“It may no longer be prudent for an owner to send its own employees to conduct such activities at a project, even though those functions may have nothing whatsoever to do with construction work being performed,” Shoor says. “Failure to account for these exposure points may trigger substantially more liability than the owner initially anticipated or contracted for.”

At the very least, Warning cautions employers to clearly establish their “sphere of operations” in their contracts, communications and other documents.

“Further, because the actual activities carried out on the project are likely to receive significant scrutiny, it would also be prudent for employers to be attentive to the activities workers engage in on a project so that any expansion of the intended sphere of operations can be avoided or managed,” he adds.

Julius Melnitzer is a Toronto-based. award-winning legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at [email protected] or https://legalwriter.net/contact.