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December 7, 2023

A recent Supreme Court of Canda ruling has significant implications for owners of construction projects in Ontario and may impact work conducted by Ontario municipalities.

In November, the Supreme Court of Canada ruled on a case related to the 2015 death of a pedestrian, who was struck by equipment operated by a contractor during a construction project in an Ontario municipality. Both the contractor and the municipality were charged with violating the Occupational Health and Safety Act (OHSA) due to the absence of fencing around the site and the lack of a signaller guiding the equipment operator.

The contractor and the municipality were charged under the Occupational Health and Safety Act (“OHSA”) by the Ministry of Labour, Training and Skills Development.  The contractor pled guilty and was as fined $195,000.  The municipality pled not guilty and proceeded to trial in the Provincial Offences Court, taking the position that it was not an “employer” under the OHSA, and that accordingly the safety requirements mandated under the OHSA did not apply to it.  The trial court found that municipality did have employees at the construction site to ensure contract compliance, but agreed with the municipality it was not an “employer” under the OHSA and was acquitted at trail. 

The Ministry appealed to the Ontario Court of Justice, where the acquittal was upheld.  The Ministry then appealed to the Superior Court of Justice, and the acquittal was again upheld.  The Ministry subsequently appealed to the Ontario Court of Appeal, where the acquittals were overturned on the basis that municipality was, in fact, an “employer” and the matter was sent back to the trial court for a determination of whether the municipality had exercised due diligence as an employer under the OHSA.  

The municipality appealed to the Supreme Court of Canada.   However, the Supreme Court, in a tied decision, overturned this acquittal and stated that the municipality had liability under the OHSA.

This means that owners must prove they have conducted due diligence to ensure site safety and contractor compliance. The due diligence requirements could be extensive and challenging, including the identification of hazards, risk assessment, communication of safety provisions to workers, monitoring of work practices, and documentation. The court's decision will place a considerable burden on owners who traditionally rely on contractors to manage safety matters.

The lack of clear guidance on what constitutes a valid due diligence defence has created uncertainty for owners. The MEA together with other like-minded organizations will follow this matter and look to address the uncertainties arising from this ruling.

The Supreme Court Decision can be viewed by CLICKING HERE.