Court affirms due diligence and denies Crown's request for leave to appeal
The Ontario Court of Appeal has denied the Crown’s request for leave to appeal in a long-running occupational health and safety case involving the City of Greater Sudbury, concluding the legal battle with a firm ruling on the City’s exercise of due diligence.
The March 31, 2025 decision ends nearly a decade of litigation that followed the 2016 death of Cécile Paquette, a pedestrian struck by a road grader operated by Interpaving Ltd.—a contractor hired by the City to conduct roadwork. While Interpaving pleaded guilty to violations under the Occupational Health and Safety Act (OHSA), the City was acquitted at trial, but the Crown appealed, and the case ended up going all the way to the Supreme Court of Canada. The Supreme Court ruled the City was an employer, but it sent the issue of due diligence back to the lower courts.
The central legal question in the final round of proceedings was whether the City, as a project owner with employer responsibilities under the OHSA, had exercised due diligence.
In August 2024, a Provincial Offences Appeal Court (POAC) judge upheld the trial court’s finding that the City met the standard of due diligence. The Crown sought leave to challenge that finding, but on Monday the Court of Appeal issued a decision declining to hear the case, stating the Crown’s arguments did not raise sufficiently novel legal questions.
Justice Coroza, writing for the Court of Appeal, stated, “This is not one of the exceptional cases raising issues of broad public importance that would justify a further appeal to this court.” He concluded the matter raised issues of mixed fact and law, rather than a question of law alone, which is a prerequisite for leave to appeal under the Provincial Offences Act.
At issue was whether the City's actions—such as monitoring the contractor and responding to safety concerns—were sufficient to establish a due diligence defence under section 25(1)(c) of the OHSA. The POAC judge found that they were, noting the City had no operational control over the jobsite and took reasonable steps within its authority. These included notifying Interpaving of non-compliance, conveying public complaints, and requiring NORCAT safety training for contractors.
Justice Coroza summarized that the trial judge and POAC judge appropriately applied the Supreme Court of Canada’s earlier guidance in R. v. Greater Sudbury (City), 2023 SCC 28, which held that control over a worksite is relevant to due diligence—not liability. Quoting Justice Martin of the Supreme Court, he noted, “What could have been done is necessarily limited to those steps that are within the employer’s control.”
Ryan Conlin, legal counsel for the City, underscored the importance of that distinction. “The key principle of due diligence here is that owners aren’t required to do things that would make them be treated as the constructor,” he said. “That ought to come as a significant relief to most employers.”
Conlin explained that while project owners still bear certain responsibilities, such as contractor prequalification, they are not expected to micromanage construction activities. “It re-establishes, thankfully, the line between an owner and [a constructor]. An owner is not required to step in and take steps that would be, in effect, controlling the job,” he said.
The Court of Appeal also rejected the Crown’s argument that the trial judge erred by relying on general safety efforts rather than specific actions tied to the regulatory breaches. Justice Coroza wrote that even if the trial judge’s reasoning could have been more narrowly framed, it was consistent with established law. “Nothing is to be gained from clarifying what this court has made clear—that it must be acts of due diligence geared towards the specific violations,” he stated.
Conlin welcomed the finality of the decision. “This is the end of the road,” he said. “It took almost 10 years to get here, so it feels pretty good.”
