Court File and Parties

Court File No.: SCA-183-18 Date: 2019-06-06 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Crown/Appellant – and – The Corporation of the City of Greater Sudbury, Defendant/Respondent

Counsel: David McCaskill, for the Crown/Appellant Ryan Conlin/Frank B. Portman, for the Defendant/Respondent

Heard: May 24, 2019

Before: Poupore, J.

Decision on Appeal

[1] The Crown appeals from the decision of Lische J. of the Ontario Court of Justice dated August 31, 2018, acquitting the respondent of six charges under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

[2] On September 30, 2016, Cécile Paquette died while attempting to cross a street in the City of Greater Sudbury that was under construction. The Ministry of Labour (“M.O.L.”) charged the Corporation of the City of Greater Sudbury (“City”) and Interpaving Limited (“Interpaving”) under the Occupational Health and Safety Act (“OHSA”). Interpaving plead guilty before trial.

[3] The City pled not guilty to:

i. failing as a constructor, to ensure that the provisions of s. 104(3) of Ontario Regulation 213/91 were complied with.

ii. failing as constructor, to ensure that the provisions of s. 65 of Ontario Regulation 213/91 were complied with;

iii. failing as a constructor, to ensure that every employer and every worker on a project complied with the OHSA contrary to s. 23(1) (b);

iv. failing as an employer, to ensure that the provisions of s. 104(2) of Ontario Regulation 213/91 were complied with;

v. failing as an employer, to ensure that the provisions of s. 65 of the Ontario Regulation 213/91 were complied with; and

vi. failing as an employer, to ensure that the provisions of s. 67(4) of Ontario Regulation 213/91 were complied with.

[4] The trial which took place over a period of five days ended in acquittals on all six charges.

Background

[5] The facts in this matter are not in dispute.

[6] The City entered into a contract with Interpaving to do some repairs to a water main in the centre of the City.

[7] The contract stipulated that Interpaving would assume control over the entire project, including the assumption of the role of “constructor” under the OHSA as well as the responsibility of ensuring that the requirements of the OHSA were met.

[8] Work began in May 2015.

[9] The fatal accident took place on September 30, 2015. The deceased was attempting to cross at an intersection within the construction zone. She was struck by a road grader.

[10] The intersection was closed. It had a functional traffic light.

[11] An employee of Interpaving was operating the road grader through the intersection when his traffic light was green. No signallers were present to assist the grader operator as required.

[12] A sturdy fence of at least 1.8 metres in height was supposed to be present between the public right of way and the street. It was not.

[13] The City under its roads authority was responsible for maintain the road network under the Highway Traffic Act, R.S.O. 1990, c. H.8.

[14] Police constables were to be used if work was performed in an intersection. The City acted as a conduit to communicate requests for police constables by the constructor. The City would pay the police service directly to shortcut the billing process. The police officers were under the control of the constructor when performing this role on the construction site.

The Ontario Court of Justice Decision

[15] The trial judge found that the appellant did not prove that the City acted as an employee and/or as a constructor on the project. She went on to find that should she be found to be wrong in finding the City was not an employer, the court was satisfied on a balance of probabilities that the City exercised due diligence.

The OHSA

[16] It is clear law that the OHSA is public welfare legislation that is to be interpreted generously, not narrowly or technically. Sharpe J.A. put it clearly in R. v. Corporation of the City of Hamilton (2002), 58 O.R. (3d) 37 (C.A.) at para. 16:

The OHSA is a remedial public welfare statue intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided.

[17] It is also well settled that offences under OHSA are strict liability offences. The Crown must prove the offence beyond a reasonable doubt. Mens rea is not a consideration. The onus then shifts to the defence to prove due diligence on a balance of probabilities.

[18] The trial judge reviewed the evidence in detail. She made a number of findings of fact based upon that review and her assessment of credibility. She reviewed the role played by the City and Interpaving on the project and she reviewed the contract entered into by them as it related to the roles each were to play throughout the construction project.

[19] The City had reserved to itself the right to inspect Interpaving’s work and progress on the project for quality assurances purposes. Section 1(3) of the OHSA limits the definition of a constructor on a site as follows:

“An owner does not become a constructor by virtue of the fact that the owner has engaged an architect, professional engineer or other person solely to oversee the quality control at a project.”

[20] The trial judge did not find that the City, while performing its supervisor role on the project, either stepped into the role of the “constructor” on the project or that of an “employer” on the project.

[21] Two of the trial judge’s findings of fact that were agreed to by the City made out the actus reus of the offences charged. In other words, the City agreed that if the trial judge had found that the City was either an employer and/or a constructor on the project, the Crown would have proven the City guilty of some or all of the offences charged subject only to the City proving due diligence on a balance of probabilities.

Positions of the Parties

[22] The appellant submits that the trial judge made findings of fact that were not supported by the evidence and/or failed to make findings of fact that the evidence required.

[23] Further, the appellant submits that the trial judge made legal error in her consideration of the definitions of “constructor” and “employer” as those terms applied in the case.

[24] In addition, the appellant submits that the trial judge erred by misapplying the law and binding jurisprudence in the area of due diligence.

[25] The appellant argues that the test to be applied to the errors made by the trial judge is correctness.

[26] The respondent submits that the trial judge’s verdicts were well reasoned, thorough and took into account all of the evidence. There is no basis for appellate intervention.

[27] The respondent further submits that the trial judge had to have been legally correct about the tests for “constructor” and “employer”. However in terms of any factual findings she made and applied or misapplied to the definitions the standard is palpable and overriding error.

Discussion

[28] The appellant argued that the City acted as a “constructor” on the project by virtue of the amount of control it exercised. As examples of this control, the appellant points to:

i. the contract between the City and Interpaving in which the City retained some authority if it chose to direct the work in accordance with the plans and specifications;

ii. the City would require Interpaving to fire incompetent employees on site;

iii. the City could compel coordination of scheduling on site to avoid interference with other work;

iv. the City could suspend work on the project if it was deemed unwise to continue; and

v. the City had ultimate control over traffic control.

[29] The trial judge dealt with the issue of the City’s control over the project and made specific findings of fact regarding the issues raised. I see no error in the trial judge’s treatment of this issue. In fact, I agree with her conclusion that the City did not exercise control over the site to the point where it became the constructor.

[30] What the trial judge was presented with in this case was a typical contract issued by a municipality to have regular maintenance work performed on its infrastructure. The City went about is obligation to oversee the contract and the performance of the constructor. The trial judge’s findings and conclusions were not outside the bounds of what is expected of an owner on such a project.

[31] The appellant put this project under a microscope in order to find some instances where the City as owner may have overstepped its role while still exercising control on the project. Viewed as a whole however, the trial judge properly found that the appellant had not proven the City took over as constructor.

“What the appellant attempted to do in this case was specifically rejected in Yukon Territory (Directory of Occupational Health and Safety as Yukon) (“Yukon”) 2012 YKSC 47 para. 103, namely “that the role of each party under the OHSA should be determined retrospectively by looking at the facts and determining which definition fits which party. That appears to me to be a recipe for confusion on a construction site, where the protection and safety of the workers and the public require everyone on the site to know their obligations under the OHSA and Regulations at the onset of the Project.”

[32] As stated, the OHSA provides for a limitation of the definition of constructor such that an owner does not become a constructor by virtue only of the fact that the owner has engaged professional or other persons to oversee quality control at a project s. (3) OHSA.

[33] The appellant takes the position that the trial judge erred because she did not find the City an employer for having employees on the project for the purpose of overseeing quality control. In other words, the limitation of the definition of constructor does not apply to the definition of employer which in turn would make an owner which undertakes quality control on a project responsible for not only the safety of its own workers, but also for the safety of all workers on a project.

[34] The trial judge in my opinion rightly rejected this position. This was not contemplated by the parties in their contractual relations, just the opposite. No case was cited to support the appellants’ position. It would change substantially what has been the practice in Ontario on construction projects.

[35] The appellant submitted that the City had significant control over workers on the site. The trial judge rejected this view and properly found that the Ministry of Labour for Ontario had not proved that the City acted as an employer on site.

Conclusion

[36] It is clear from the trial judges’ reasons that she identified all of the issues and correctly decided them on the facts she found.

[37] I see no error in the trial application of the facts in this case to the definitions of “employer” and “constructor” with respect to the project. Accordingly the appeal is dismissed.

The Honourable Mr. Justice John S. Poupore Released: June 6, 2019