Crown has 30 days from decision date to challenge ruling
The Ontario Superior Court of Justice has dismissed the appeal in the case of R. v. Greater Sudbury (City), 2024 ONSC 3959, solidifying the City's position that it exercised due diligence when contracting with a third-party constructor. This ruling is pivotal for health and safety professionals, particularly in how it defines an owner's responsibilities under the Occupational Health and Safety Act (OHSA).
Key findings of the decision
The court upheld the finding that the City of Greater Sudbury acted with appropriate due diligence in its role as an owner when it contracted with Interpaving Limited, an experienced constructor, to manage a construction project where a fatality occurred. The ruling affirms that municipalities and other owners can fulfill their due diligence obligations without having to exercise daily control over a construction project.
Ryan Conlin, partner at Stringer LLP, and the lawyer who represented the City, highlighted that "the Appeal Court confirmed the trial court's finding that the City had quality control inspectors but rejected the Crown's argument that the City was controlling the job." Conlin further explained, "The court found that the City did monitor and supervise the work at an appropriate level without taking over the job, which was key to the due diligence finding."
Connection to the Supreme Court of Canada decision
This decision follows a previous ruling by the Supreme Court of Canada (SCC), which addressed whether the City of Greater Sudbury could be considered an "employer" under Ontario law when contracting work out to a third-party general contractor. The Supreme Court, in a 4-4 tie, left in place the Ontario Court of Appeal’s decision that the City was an employer. However, it also emphasized the need for a contextual approach to determine due diligence, considering factors like the degree of control over the workplace and whether reasonable precautions were taken to ensure compliance with safety regulations.
The Ontario Superior Court's ruling adheres to this contextual approach, as highlighted by the SCC, by examining the City's actions regarding contractor selection, oversight, and communication. As Conlin noted, "The Supreme Court had set out a couple of elements that courts should consider when assessing the role of municipalities in terms of assessing their due diligence."
Implications for health and safety professionals
For safety professionals, this ruling underscores the importance of adopting a contextual approach to due diligence. As Graeme Hooper of Mitha Law Group noted on social media, "The importance of context was the real takeaway for employers across Canada and in BC." This means that health and safety protocols must be tailored to the specific circumstances of each project, considering the capabilities and responsibilities of all parties involved.
Cheryl Edwards, a partner at Matthews, Dinsdale & Clark LLP, echoed this sentiment on social media, adding, "the decision reflects the traditional 'hands-off' approach we have recommended that owners of construction projects take in most cases." Edwards and fellow partner at Matthews Dinsdale & Clark LLP, Jeremy Warning, elaborate on the decision in an article on the law firm’s website. They suggest the ruling reinforces that owners are not expected to manage day-to-day operations but should instead ensure that contractors are qualified and that any safety issues are communicated effectively back to the contractor for resolution.
Potential outcomes and next steps
While the City of Greater Sudbury's due diligence has been validated, the case may not be entirely closed. Conlin pointed out that "the prosecution has 30 days from the date of the judgment to seek leave from the Ontario Court of Appeals." This step would require the court to consider whether there is a matter of public importance or a significant legal question that warrants further review.
For now, the ruling provides much-needed clarity on the obligations of municipalities and owners under the OHSA, offering a framework that balances oversight with practical delegation. This decision may serve as a guiding precedent for future cases involving employer definitions and due diligence, reaffirming a sensible approach that protects both workers and the integrity of municipal operations.
It reassures municipalities and project owners that a high-level supervisory role, coupled with competent contractor engagement and effective communication, meets the legal standards of due diligence.
