Court of Appeal for Ontario

Date: 2019-10-28 Docket: M50582 Motion Judge: Brown J.A.

Between

Her Majesty the Queen in Right of Ontario (Ministry of Labour) Applicant (Moving Party)

and

The Corporation of the City of Greater Sudbury Respondent (Responding Party)

Counsel

David McCaskill, for the moving party

Ryan Conlin and Frank Portman, for the responding party

Heard

September 26, 2019

Reasons for Decision

[1] Although the threshold for granting leave to appeal pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 ("POA"), is very high, I am satisfied that this case is one where the resolution of a question of law alone may have an impact on the jurisprudence in a way that is of interest to the public at large: Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13, 382 D.L.R. (4th) 343, at para. 34.

[2] The factual matrix in which the question of law arises involves a common type of construction project: a municipality enters into a contract for the repair and reconstruction of urban municipal roadways. In the present case, a piece of heavy equipment backed up without the presence of a signaller, and a human life was lost. The legal issue then arises about what, if any, liability the municipality may bear for that occurrence under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("the OHSA").

[3] The respondent, The Corporation of the City of Greater Sudbury ("Sudbury"), was charged with offences under the OHSA alleging the contravention of statutory duties as a "constructor" and "employer" in respect of the road repair project. Sudbury was acquitted on all counts. The Crown's appeal to the Superior Court of Justice was dismissed: 2019 ONSC 3285, 88 M.P.L.R. (5th) 158.

[4] The moving party, Her Majesty the Queen in Right of Ontario (Ministry of Labour) ("the Crown"), seeks leave to appeal the acquittals on the basis that both courts below erred in their interpretation or application of the OHSA's definitions of "constructor" and "employer", improperly importing an element regarding the degree of the municipality's control over the project into the definition of "employer" and improperly applying the control element in the definition of "constructor".

[5] The Crown concedes, at para. 25 of its factum, that control is an essential element of the definition of "constructor". Consequently, its complaint that the courts below erred in their assessment of the degree of control exercised by Sudbury over the project engages a question of mixed fact and law, which is not appealable under POA s. 131.

[6] However, I am satisfied that a question of law alone is engaged by the Crown's contention that the courts below erred by importing into the definition of "employer" an element regarding the degree of control that Sudbury exercised over the project. The interpretation of "employer" in the OHSA adopted by the courts below may, at the end of the day, be free from legal error. However, a large number of municipal infrastructure projects are undertaken in this province each year in which the municipality contracts the work out to a third party. Whether a municipality may or may not fall within the definition of "employer" in respect of such projects by reason of the degree of control it exercises over the project engages a question of law alone of interest to the public at large. As such, special grounds for leave to appeal exist within the meaning of POA s. 131.

[7] I recognize that the trial judge also examined Sudbury's liability on the assumption that it was an employer and concluded that Sudbury had established a defence of due diligence. The Crown contends that the trial judge erred at law by considering general, not specific, acts of due diligence. The Crown observes that the appeal judge did not address the issue of due diligence in his appeal reasons. This court has recognized that whether the acts of due diligence are sufficiently specific to support a due diligence defence at law may constitute a question of law alone sufficient to support granting leave to appeal under POA s. 131: Her Majesty the Queen v. Petro-Canada (January 30, 2001), Toronto, M26383 (Ont. C.A.). In the present case, the Crown's ground of appeal in respect of the due diligence defence is arguable. Notwithstanding that Sudbury contends the issue largely turns on facts, not law, I do not regard the trial judge's findings on the due diligence defence as an obstacle to granting leave to appeal on the legal question of the definition of "employer", given the interest to the public at large of that legal issue.

[8] As a result, I grant the Crown leave to appeal from the acquittals of Sudbury on the counts that alleged the municipality had breached its duties under the OHSA as an "employer".

"David Brown J.A."