Court of Appeal for Ontario

Date: 20210423 Docket: C67701

Before: Fairburn A.C.J.O., Watt and Huscroft JJ.A.

Between: Her Majesty the Queen in Right of Ontario (Ministry of Labour), Appellant

And: Corporation of the City of Greater Sudbury, Respondent

Counsel: David McCaskill, for the appellant Ryan J. Conlin and Amanda D. Boyce, for the respondent Chetan Muram and Kevin Simms, for the intervener Workers’ Health and Safety Legal Clinic

Heard: January 26, 2021 by video conference

On appeal from the judgment of Justice John S. Poupore of the Superior Court of Justice, dated June 6, 2019, with reasons reported at 2019 ONSC 3285, 88 M.P.L.R. (5th) 158, dismissing an appeal from the acquittals entered on August 31, 2018, by Justice Karen L. Lische of the Ontario Court of Justice.

Reasons for Decision

Overview

[1] A woman died after she was struck by a road grader performing repairs at an intersection in downtown Sudbury. The grader driver was employed by Interpaving Limited, a company the respondent, the City of Sudbury, had contracted to complete the road repairs. The City employed inspectors at the project site, among other things overseeing Interpaving’s contract compliance.

[2] Interpaving and the City were charged with violations of Construction Projects, O. Reg. 213/91 (the “Regulation”), contrary to s. 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA” or the “Act”). The City was charged on the basis that it was both a “constructor” and an “employer” within the meaning of the Act. [1]

[3] Interpaving was found guilty but the City was acquitted in separate proceedings. The trial judge in the City’s case found that there was no signaller in assisting the grader operator, nor was a fence erected between the public way and the worksite, as required by the Regulation. However, the trial judge concluded that the City was neither an employer nor a constructor and so owed no duties under the Act. The trial judge went on to find that, in any event, the City had a due diligence defence to the charges.

[4] The Crown’s appeal was dismissed. The appeal judge upheld the trial judge’s finding that the City was neither an employer nor a constructor and did not consider whether the City would have had a due diligence defence.

[5] The Crown was granted leave to appeal to this court to determine whether the appeal judge erred in concluding that the City was not an employer under the Act. The City’s possible status as a constructor was an issue of mixed fact and law and so not subject to appeal under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”).

[6] We conclude that the City was an employer within the meaning of the Act and, as a result, was liable for violations of the Regulation found by the trial judge unless it could establish a due diligence defence. The appeal is allowed and the decision is remitted as set out below to hear the Crown’s appeal of the trial judge’s due diligence finding.

Discussion

Is the City an employer?

[7] This is an appeal from the judgment of the appeal judge. The question for this court is whether the appeal judge erred in concluding that the City was not an employer for purposes of the Act.

[8] At the outset, the Crown reminds the court that the OHSA is public welfare legislation, and as such “should be read liberally and broadly in a manner consistent with its purpose”. There is no doubt that this is so; this court has consistently instructed that the Act must be interpreted generously, rather than narrowly or technically, in order to allow it to achieve the purpose of protecting employees’ health and safety. See, most recently, Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006 at paras. 19-20, and the authorities cited.

[9] Whether the City is an “employer” turns on the application of the definition of employer in s. 1(1) of the OHSA, which provides as follows:

“employer” means a person who employs one or more workers or contracts for the services of one or more workers and 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; (“employeur”) …

[10] The definition embraces both employing and contracting for the services of workers, but this appeal can be resolved at the first branch of the definition. As this court explained in R. v. Wyssen, at p. 7, “[t]he definition of ‘employer’ in the Act covers two relationships: firstly, that of a person who employs workers and secondly, that of one who contracts for the services of workers.” A person “who employs one or more workers” is therefore an employer for the purposes of the Act and is responsible for ensuring compliance with the Act in the workplace.

[11] The Act establishes overlapping responsibility for health and safety and contemplates the possibility of multiple employers in a workplace. In Wyssen, at p. 9, the court noted that the relevant enforcement provisions in the Act put employers “virtually in the position of an insurer who must make certain that the prescribed regulations for safety in the work place have been complied with before work is undertaken by either employees or independent contractors.”

[12] Not only do the duties of the workplace parties overlap; one person or entity may also meet the definitions for several different workplace parties and therefore be required to assume the duties of each of those parties at the same time. For example, a person or entity might be subject to duties as an owner as well as an employer and a constructor.

[13] In this case, there is no doubt that City inspectors – employees employed directly by the City – were present on the project site and performed a variety of tasks. Among other things, they monitored the job site for quality control purposes and monitored the progress of the work to confirm that the City was receiving the work it was paying for.

[14] Plainly, the City employed one or more workers at the project site within the meaning of s. 1(1). It is therefore an employer for the purposes of the Act and, as Wyssen makes clear, that is sufficient to dispose of this appeal. The exemption in s. 1(3), which precludes an owner from becoming a constructor by engaging a person to oversee quality control, does not preclude owners from becoming employers.

[15] Although Brown J.A. raised a broader question in granting leave to appeal to this court – whether “control” is a requirement in cases where a municipality has contracted work to a third party – it is not necessary to resolve this question in order to decide this appeal. The City employed one or more workers at the project site and so assumed responsibilities as an employer under the Act on this basis under the first branch of the “employer” definition. Whether a municipality that contracts work to a third party must exercise control over that third party or its workers to be an employer under the second branch of the definition raises a number of issues that were not sufficiently canvassed in the parties’ submissions. In our view, it would be improvident to decide these issues on the record before us.

[16] Consequently, nothing in this decision is to be taken as either an endorsement of the appeal judge’s analysis or a determination of whether or not control is an element of the definition of “employer” where a municipality contracts work to a third party.

Did the City exercise due diligence?

[17] As noted above, the trial judge’s findings that the Regulation was breached by the failure to have a signaller in place to assist the grader operator and the failure to erect a fence between the public way and the worksite render the City liable as employer for breach of s. 25(1)(c) of the Act, unless the City succeeds in establishing a due diligence defence.

[18] The Crown argues that the trial court’s test for due diligence – a matter not addressed by the appeal judge – was wrong in law. According to the Crown, the City was required to show that it took all reasonable steps to ensure that the specific safety violations were remedied; general acts directed at safety cannot satisfy the due diligence obligation. The Crown submits that, if this court concludes that the City was an employer, the necessary findings of fact were made by the trial judge to substitute convictions on counts 8 and 9 of the Information (failure to have a signaller and failure to erect a fence). In the alternative, the Crown requests that a new trial be ordered.

[19] The City responds that it satisfied its due diligence obligations by exercising diligence and prudence in the tendering process that resulted in the contract with Interpaving. In the alternative, the City argues that it took other steps that were sufficiently specific to meet its due diligence obligations as an employer.

[20] It must be emphasized that this court sits in appeal from the decision of the appeal judge, not the trial judge: Ontario (Labour) v. Nugent, 2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 22. The appeal judge made no decision on the due diligence question, but a new trial is neither necessary nor appropriate for that reason. The appropriate remedy is to remit the matter to the appeal court to hear the City’s appeal of the due diligence issue.

[21] The court’s ability to remit the matter flows from s. 134 of the POA, which incorporates ss. 121 and 125 with necessary modifications. In short, s. 121 sets out the powers of the first-level appeal court in allowing an appeal from an acquittal. Although s. 121 does not explicitly provide that the Court of Appeal may remit the matter to the appeal judge to consider an alternative argument, s. 134 provides that the provision applies in the Court of Appeal “with necessary modifications”. Section 125 provides that, when exercising its power under s. 121, the court may make any order that justice requires. These provisions authorize the court to remit the matter to the appeal court: see e.g., R. v. Francis (1996), 92 O.A.C. 308 (C.A.); R. v. Thorne, [1997] O.J. No. 1036 (C.A.); Ottawa (City) v. Spirak, 2008 ONCA 299; Ontario (Ministry of Labour) v. Modern Niagara Toronto Inc., 2008 ONCA 590, 297 D.L.R. (4th) 156; R. v. Courtice Auto Wreckers Limited, 2014 ONCA 189, 308 C.C.C. (3d) 571; and R. v. Maxwell, 2007 ONCA 834.

Conclusion

[22] The appeal is allowed. The decision of the appeal court judge is set aside.

[23] The Crown fairly concedes that the trial judge does not appear to have made the necessary factual findings to determine guilt on count 10 of the Information and that this charge was “somewhat peripheral to the event in question”. Accordingly, the matter is remitted to the appeal court for a hearing before a different judge to consider the Crown’s appeal of the City’s due diligence defence with respect to counts 8 and 9 of the Information.

“Fairburn A.C.J.O.” “David Watt J.A.” “Grant Huscroft J.A.”

Footnotes

[1] The City and Interpaving were both charged as “employers” pursuant to s. 25(1)(c) of the Act. The City was also charged as a “constructor” pursuant to s. 23(1)(a) and (b), but Interpaving was not.