Safety role of employers in construction at centre of City of Greater Sudbury case
What does due diligence mean for an employer? It’s a question at the heart of a case currently being deliberated by the Supreme Court of Canada involving the City of Greater Sudbury.
Ryan Conlin, a lawyer with Stringer LLP, represents the City of Greater Sudbury in the case and last October he argued the case before the SCC.
“There's two worlds here,” explains Conlin. “World number one is the Supreme Court rules in my client’s favour, in which case, the historic treatment of construction projects in Ontario and elsewhere, essentially stays the same.”
But, Conlin says, world number two, which would mean the SCC ruled against his client, would completely upend the idea of due diligence and what it means to an employer involved in a construction project. “We would have to see what exactly due diligence is,” explained Conlin during a recent OHS Law Masterclass.
Background on the case
58-year-old Cecile Paquette died in September 2015 after being run over by a grader operated by Interpaving, a contractor hired by the City of Greater Sudbury.
The Ontario Ministry of Labour filed charges against Interpaving and the City of Greater Sudbury. Interpaving was found guilty, but in 2018 the trial court ruled the city was not responsible because it was neither the ‘employer’ nor the ‘constructor’ on the job.
The Crown disagrees and believes the City of Greater Sudbury was the ‘employer’ responsible for the relevant health and safety violations because it hired Interpaving and had a quality control inspector visit the work site.
The Court of Appeal upheld the trial judge's decision regarding the constructor question but granted leave to appeal on the employer issue. This decision is what ultimately brought the case before the SCC.
Just before arguing the case at the SCC, Jeremy Schwartz, Conlin’s colleague at Stringer LLP stated the Crown’s argument does not align with the case law and industry practice. “This has the potential to undo decades of jurisprudence and understanding and decades of contract law in construction across every sector.”
Before the Supreme Court of Canada
Conlin and Schwartz argued the case at the SCC on October 12. The core issue is whether the City of Greater Sudbury qualifies as an employer under the Occupational Health and Safety Act. Conlin pointed out that Ontario's definition of an employer includes entities contracting for the services of subcontracted workers, a concept not previously tested within the construction context.
"What that looks like depends upon the facts," Conlin notes, highlighting the nature of the issue. "In the construction context, it's a bit of a different story."
Conlin outlined the two possible outcomes of the Supreme Court's decision:
- Status Quo: If the city's position is upheld, the existing approach to construction projects in Ontario—where owners typically take a hands-off approach to safety—will remain unchanged.
- Broadened Liability: Should the SCC rule against the city, it could substantially expand the responsibilities of employers in construction projects, potentially requiring them to take a more active role in ensuring safety, akin to constructors.
Conlin says the implications of the decision could extend beyond Ontario and into Canada’s broader construction industry. He highlighted that a ruling favoring the Crown could necessitate legislative adjustments to clarify employer obligations in construction contexts.
It’s been nearly a year since the SCC heard the case, and it’s still unclear how long it could be before it delivers a verdict. In the meantime, health and safety leaders should brace for a potential seismic shift in Canada’s construction legal liability landscape.