Supreme Court Applies Broad Definition of “Employer” Under Workplace Health and Safety Law

By Rich Appiah and Gurjot Grewal on November 24, 2023

Employers have an obligation to ensure their workforce’s safety and well-being. At the core of this duty stands the Ontario Health and Safety Act (the “OHSA”), legislation designed to provide employers with a legal framework for protecting workers from health and safety hazards on the job. This article discusses a recent Supreme Court of Canada decision, wherein the Supreme Court defined the “employer” covered by the OHSA in startlingly broad terms, and the implications of such an expansive definition in the modern Canadian workplace.

R. v. Greater Sudbury – Who is an employer?

Section 1(1) of the OHSA defines “employer” as a person who employs one or more workers or contracts for the services of one or more workers. The definition includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor, or subcontractor to perform work or supply services. The case of R. v. Greater Sudbury (City), 2023 SCC 28 (“City of Sudbury“) sheds light on the meaning and scope of this definition. In a split decision, the Supreme Court upheld an Ontario Court of Appeal decision that the City of Greater Sudbury was an employer under the OHSA even though the City hired a contractor to perform construction work on a worksite.

The City contracted with Interpaving Limited to repair a downtown watermain. During the repairs, an Interpaving employee struck and killed a pedestrian when driving a road grader in reverse through an intersection. An investigation determined that on the date of the pedestrian’s death, measures required by an OHSA regulation were not carried out on the site. The Ministry of the Attorney General charged the City (who was not actively involved in the worksite) for breaching s. 25(1)(c) of the OHSA. This section requires an “employer” to ensure that safety requirements prescribed by legislation and regulations are being carried out in a workplace.

The City conceded it was the owner of the construction project and acknowledged that it sent its quality control inspectors to the project site to oversee Interpaving’s contract compliance. However, it denied being an employer for the purposes of the OHSA, arguing that it lacked control over the repair work and had delegated control to Interpaving.

According to the Supreme Court, the OHSA’s broad definition of “employer” did not require the Ministry to establish that the City had control over workers or the workplace at issue to prove that the City breached its obligations as an employer under s. 25(1)(c). The Court held that the City was an employer under the OHSA because it employed:

a) inspectors, whom it employed directly and dispatched to the construction project; and

b) Interpaving, with whom it contracted to undertake the construction project.

Regarding the role of control in regulatory prosecutions against employers, the Supreme Court indicated that an employer accused of breaching section 25(1)(c) of the OHSA could rely on its lack of control to raise a due diligence defence and show it took all reasonable steps in the circumstances. Additionally, the Court suggested that the accused employer’s degree of knowledge, skill, or experience, and the gravity and likelihood of harm (i.e., the “foreseeability of the accident”) were all relevant when determining whether the employer took such steps. Despite providing the above insights, the Court did not rule on whether the City’s actions in the circumstances demonstrated due diligence. Ultimately, the Supreme Court agreed with the Court of Appeal that the City was an employer and breached its duty under s. 25(1)(c) of the Act and remitted the matter to the provincial offences appeals court on the issue of the City’s due diligence defence.

Key Takeaways for Employers

City of Sudbury will have a significant impact on all parties involved in a construction project and likely on key stakeholders in other industries. The case expands the definition of employer for the purposes of OHSA beyond the general understanding of the term. Generally, control is considered an essential element of an employer-employee relationship. However, per the Supreme Court ruling, an owner of a construction project can now become an employer by hiring inspectors to perform site inspections or contractors to oversee workers and construction-related activities on site. This means the Ministry may charge the owner of a construction project for any safety lapse on a construction site even if the owner delegated the entire control of the workplace to a contractor.

Further, per City of Sudbury, even if an employer did not exert control over workers or a workplace, the employer may be charged by the Ministry for a safety violation under section 25(1)(c) if it simply contracted out for the services of workers.

In view of the above, you could be considered an employer under the OHSA and, therefore, be liable for any safety-related incident at the worksite, even if you do not employ workers directly or have no control over the activities of the workers on the worksite. You should be concerned if you are a project owner contracting work, or a contractor subcontracting work, even if you do not exercise control of a project site.

It is possible to manage your liability by doing your due diligence and taking every precaution reasonable in the circumstances to prevent a safety-related incident in the workplace. You can demonstrate your due diligence to prevent a workplace safety lapse by:

a) educating yourself and your workers, including contractors, regarding the health and safety protocols under the OHSA and applicable regulations;

b) putting in place detailed health and safety-related policies in the workplace in accordance with the OHSA and applicable regulations;

c) creating a checklist of all the health and safety measures required to be undertaken in the workplace and ensuring compliance with such measures;

d) hiring professionals to inspect the worksite to ensure compliance with the health and safety-related laws and workplace policies; and

e) consulting an employment lawyer to understand your rights, obligations, and liabilities in the event of a health and safety-related violation in the workplace or a charge by the Ministry of Labour.

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