In an August 23, 2024 ruling, the Ontario Superior Court of Justice dismissed an appeal by the Crown against the City of Greater Sudbury, affirming that the City exercised due diligence in a tragic 2015 construction site fatality. The case involved a pedestrian who was struck and killed by equipment operated by a contractor’s employee. This ruling is important for municipalities and contractors as it clarifies the responsibilities of construction project owners under workplace safety laws. These responsibilities had been put into doubt since late last year after the Supreme Court of Canada ruled that an owner (i.e., a municipality) cannot evade responsibility for a workplace death by claiming lack of control over a contractor.
Background
The City of Greater Sudbury had hired a general contractor for a road and water main repair project. The contractor was responsible for safety on the site, while the City, as the project owner, had its employees periodically inspect the worksite for quality control.
During the project, a pedestrian was killed by a grader operated by the contractor. The site lacked key safety measures, such as fencing and traffic control.
Both the City and the contractor were charged under the Occupational Health and Safety Act (OHSA). The contractor pleaded guilty and was fined, while the City fought the charges in court.
Court Decisions
The initial trial court acquitted the City, ruling that it was not at fault. However, the Crown appealed, arguing that the City should be considered an “employer” under OHSA, which would make it responsible for ensuring safety on the site. The Court of Appeal overturned the initial judgment and sided with the Crown. The City appealed this decision to the Supreme Court of Canada, who ultimately sided with the Crown. However, the Supreme Court also remitted the decision to the Superior Court to determine whether the City had exercised due diligence.
On August 23, 2024, the Ontario Superior Court of Justice ruled in favor of the City, confirming that it had exercised due diligence by selecting a qualified contractor and properly overseeing the work.
Implications
This decision clarifies that municipalities and project owners who take careful steps in hiring and supervising contractors may not be held liable for safety violations, even if their employees are present on-site for quality control. The ruling provides guidance on how to meet due diligence requirements, emphasizing factors like the level of control over the site, the qualifications of the contractor, and the oversight provided by the project owner.
Municipalities and contractors can take this ruling as a benchmark for how to structure their roles and responsibilities in construction projects to avoid liability under OHSA.
Good Roads encourages its members to speak with their legal counsel about how to best protect themselves.
