Court of Appeal for Ontario

Date: 2025-03-31
Docket: COA-24-OM-0315
Judge: Steve Coroza (Motions Judge)

Between:
Ontario (Labour, Immigration, Training and Skills Development) (Moving Party)
and
The Corporation of The City of Greater Sudbury (Responding Party)

Appearances:
David McCaskill, for the moving party, the Ministry of Labour, Immigration, Training and Skills Development
Ryan Conlin, for the responding party, The Corporation of the City of Greater Sudbury

Heard: December 13, 2024

Endorsement

[1] On September 30, 2016, Cécile Paquette died after being struck by a road grader as she was crossing a street in the City of Greater Sudbury (the “City”). The road grader was operated by an employee of Interpaving, a company hired by the respondent, the City, to complete road repairs.

[2] Both Interpaving and the respondent 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 (the “Act”). Interpaving pleaded guilty before trial, but the respondent was acquitted in a separate proceeding.

[3] The trial judge found that the respondent was not liable because it was neither an “employer” nor a “constructor” within the meaning of the Act. In the alternative, even if the respondent was an “employer” under the Act, the trial judge found that the respondent had established the defence of due diligence on a balance of probabilities.

[4] The Crown unsuccessfully appealed the decision before the Provincial Offences Appeal Court (the “POAC”). The POAC judge agreed that the respondent’s actions did not render it an “employer” or “contractor” as defined by the Act and dismissed the appeal on that basis. The POAC judge did not go on to consider the Crown’s second ground of appeal: that the trial judge erred in finding that the respondent had made out the defence of due diligence.

[5] This court overturned the decision of the POAC judge and found that the respondent was an “employer”, and further, had breached its obligations under the Act. However, the court found that because the POAC judge did not consider the defence of due diligence, that ground of appeal had to be remitted back to the POAC. On further appeal to the Supreme Court of Canada, the court was split 4-4, producing three sets of reasons with joint dissenting reasons from Rowe and O’Bonsawin JJ. (Karakatsanis J. concurring) with Côté J. dissenting on her own. Because the court was split, the appeal was dismissed and this court’s decision stood, meaning the question of due diligence was remitted to the POAC.

[6] Accordingly, on August 23, 2024, a different POAC judge heard the matter on the narrow issue of whether the trial judge committed an error in finding that the respondent exercised the due diligence required of a project owner with employer obligations under the Act. The POAC judge found that there was no error. The POAC judge concluded that the Crown was “asking [him] to look at the evidence and come to a conclusion different from that of the trial judge, something that is not permitted.”

[7] The Crown now seeks leave to appeal to this court from the judgment of the POAC judge, pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”).

[8] For the following reasons, I would deny leave.

I. Background

[9] To provide context for the Crown’s request for leave, it is useful to briefly summarize the decisions of the Supreme Court of Canada, the reasons of the trial judge and the reasons of the POAC judge on the issue of due diligence.

(1) R. v. Greater Sudbury (City), 2023 SCC 28

[10] As noted above, the appeal from this court dealt primarily with the interpretation of the term “owner” under the Act. Martin J., writing on behalf of herself, Wagner C.J., Kasirer and Jamal JJ., wrote that a determination of how much “control” an owner had over the workplace/workers is not required when determining:

a) if an owner is an employer under s. 1(1) of the Act, and
b) if s. 25(1)(c) of the Act has been breached by the employer.

[11] Instead, in her view, the degree of control an employer had should only be considered when determining if the employer exercised the requisite due diligence. Martin J. noted that an accused is in the best position to demonstrate that its lack of control establishes that it took all the reasonable steps in the circumstances. She instructed that a fact-finder should assess, either in absolute or comparative terms, whether an employer had control over the worker and the workplace; and while due diligence is best measured against what could have been done, “what could have been done” is necessarily limited to those steps that are within the employer’s control: at para. 56.

[12] Significantly, Martin J. emphasized that the guidance given in the decision was not novel, as the consideration of control was “well recognized in existing authorities”: see R. v. Gonder. Finally, at para. 61, she held that relevant considerations for the due diligence defence included:

• The accused’s degree of control over the workplace or the workers there;
• Whether the accused delegated control to the constructor in an effort to overcome its own lack of skill, knowledge or expertise to complete the project in compliance with the Regulation;
• Whether the accused took steps to evaluate the constructor’s ability to ensure compliance with the Regulation before deciding to contract for its services; and
• Whether the accused effectively monitored and supervised the constructor’s work on the project to ensure that the prescriptions in the Regulation were carried out in the workplace. [1]

(2) The Trial Judge’s Reasons

[13] Turning to the trial judge’s reasons, on the issue of due diligence, the trial judge found that the respondent took “every precaution reasonable in the circumstances to prevent the tragedy that occurred.” The trial judge listed the following factors to support her conclusion: the respondent had hired Interpaving following the usual tendering process; the respondent had previous dealings with Interpaving on approximately 40 projects in the five years prior to the accident; the respondent paid a premium for Interpaving’s services. In addition, the respondent, as an employer, displayed due diligence when:

• It notified Interpaving that it was not in compliance with the Regulation on a previous occasion (two weeks before the accident) and brought the matter to the attention of Interpaving management when the matter was not rectified;
• It took complaints from the public and made Interpaving aware of issues;
• It advised Interpaving that the fencing had been knocked down;
• It commented to Interpaving about the usage of road signs;
• It required the successful bidder in the tender (i.e., Interpaving) to have NORCAT safety awareness training specifically designed for City projects; and
• It attended periodic progress meetings, sometimes chairing them or taking minutes.

(3) The POAC Judge’s Reasons

[14] The POAC judge characterized the Crown’s position on appeal as “focused on the amount of control that the City had over the project”. As I read his reasons, the POAC judge relied on para. 61 of Martin J.’s reasons where she listed the relevant factors that a court could consider when determining whether due diligence was established. The POAC judge then went through each factor.

(a) Did the City have control over the workplace and the workers on it?

[15] The POAC judge found that the trial judge was entitled to find, based on the evidence, that the respondent did not have control over the workplace – despite the presence of City quality control inspectors.

(b) Did the City delegate control to Interpaving to overcome its own lack of skill, knowledge or expertise?

[16] The POAC judge found that there was evidence at trial that the respondent had paid a premium to Interpaving because Interpaving had expertise that the respondent lacked.

(c) Did the City evaluate whether the potential constructor had the capacity to perform the work and enforce compliance with the Regulation?

[17] According to the POAC judge, the trial judge found that the respondent had assessed the capacity of Interpaving to perform the work safely and the evidence supported that finding.

(d) Did the City monitor and supervise the constructor’s work?

[18] The POAC judge noted that the trial judge found that the City did monitor and supervise Interpaving’s work, as exemplified by notifying Interpaving about visible breaches of the Regulation and conveying public complaints to Interpaving, among other things.

[19] In conclusion, the POAC judge held that if the respondent had “exercised the amount of control over the project that was urged by the [Crown],” the respondent would have been found to be a constructor not an owner. He found that the Crown was asking the court to come to a different conclusion than the trial judge based on the same evidence, which is not permitted. Accordingly, he dismissed the appeal.

II. Analysis

(1) Test for Leave

[20] To obtain leave under s. 131 of the POA, the Crown must establish:

1. special grounds;
2. on a question of law alone; and
3. that, in the particular circumstances of the case, it is essential in the public interest or for the due administration of justice that leave be granted.

[21] Lauwers J.A. in R. v. Wilson, 2013 ONCA 503, para 2, summarized the test for leave in the following way:

There must be a question of law alone, the resolution of which may have an impact on the jurisprudence in a way that is of interest to the public at large, and that resolution must be essential in the public interest, in the sense of “material, important”, or for the due administration of justice. [Emphasis added.]

[22] Similarly, in Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13, para 35, Watt J.A. explained:

Demonstration of error in the judgment below, without more, does not satiate the demands of ss. 131(1) and (2). The other criteria of the subsections must be met. The error must involve a question of law alone, not a question of fact or of mixed fact and law. The resolution of the questions of law in the circumstances must be essential in the public interest (not merely the interest of the litigants), or for the due administration of justice. [Citations omitted; emphasis added.]

[23] Recently, Dawe J.A. in R. v. Consolidated Homes Ltd., 2025 ONCA 41, reminded litigants that the jurisprudence of this court does not support broad access to second level appeals of POA matters. He stated, at para. 18:

As noted above, even when a proposed POA appeal to this court presents a question of law alone, the party seeking leave must also establish “special grounds” and show that it is “essential in the public interest or for the due administration of justice that leave be granted”: see ss. 131(1) and (2); see also ss. 139(1) and (2). The focus is not on whether the subject-matter of the case is of interest or importance to the public, but whether the proposed appeal raises significant legal issues that should be resolved by this court.

This court’s jurisprudence holds that first-level POA appeal judgments “are intended to be final”, and that leave to appeal to this court should be granted “only in exceptional cases raising issues of broad public importance”. The threshold for granting leave is “very high”. It is not enough for a party seeking leave to demonstrate that it has a strong argument that the decision below was wrong. [Citations omitted; emphasis added.]

[24] In sum, the threshold for granting leave is very high and leave should be granted sparingly.

(2) Positions of the Parties

[25] On its motion for leave, the Crown makes one overarching submission: the POAC judge erred by endorsing the incorrect interpretation of the defence of due diligence engaged in by the trial court.

[26] The Crown argues that two specific errors were made: (1) the trial judge found that acts of general due diligence in the workplace, not acts exclusively directed towards the alleged violations, satisfied the test which is contrary to established jurisprudence; and (2) the trial judge and the POAC judge failed to properly understand the interplay between the concept of control of the workplace and the necessary elements of the due diligence defence. The Crown submits that leave should be granted because the proper application of the defence of due diligence is a matter essential to the public interest.

[27] The respondent opposes the motion for leave and submits that the Crown’s appeal is an attempt to relitigate the factual findings in the case.

(3) Analysis

[28] I would deny leave for several reasons.

[29] First, while the Crown is correct that this court has held that a determination of due diligence must be analyzed with respect to the specific acts alleged, not with reference to general actions taken for general safety, see Ontario (Labour) v. Bondfield Construction Company Limited, 2023 ONCA 813, para 17, I am not convinced that the trial judge did in fact err in the manner alleged by the Crown. Read functionally, it is arguable that the trial judge considered the due diligence defence in relation to the specific acts alleged when assessing whether there were actual violations of the Act. As noted above, one of the factors that the trial judge pointed to was the fact that the respondent “advised Interpaving that fencing had been knocked down on [the worksite]” and “suggested to Interpaving that there was insufficient signage, issues with signage and insufficient access to crosswalks for the public” after receiving public complaints on the issue.

[30] Second, the law is settled as to whether due diligence can only be made out by reference to acts directed at the specific violations or can be made out by reference to acts aimed at general health or safety. Nothing is to be gained by this court repeating that analysis. In 2023, Favreau J.A. declined to grant leave on a related question: Bondfield, at paras. 16-18.

[31] In Bondfield, the respondents faced multiple charges under the Act. On its motion for leave, the Crown argued that the POAC judge erred in law in its analysis of the trial judge’s due diligence analysis because the POAC judge held that the trial judge erred by considering due diligence to the “entirety of the offences”, as opposed to considering due diligence relating to each particular offence. The POAC Judge said, “[t]he trial Justice of the Peace was required to consider the defence of due diligence regarding each Appellant relating to each of them taking all reasonable steps to avoid committing a particular offence.” While Favreau J.A. agreed that this “may have been an overstatement of the law”, she held that as a general proposition, the POAC judge was correct in law that the defence had to be related to each separate charge. Favreau J.A. went on to highlight, at para. 17:

As held by this court in Ontario v. Brampton Brick Ltd., para 28, citing R. v. Kurtzman, “[t]he employer must show that it acted reasonably with regard to the prohibited act alleged in the particulars and not some broader notion of acting reasonably”: see also R. v. Raham, 2010 ONCA 206, para 48. This is consistent with the broader principle, as explained in Rankin, at para. 34, that “[g]uilt or innocence [has] to be decided on a count-by-count basis”.

[32] Ultimately, Favreau J.A. did not agree with the appellant that the POAC judge had erred in law, despite its “overstatement” in the language used. But instead of declining leave on this basis, Favreau J.A. went on to hold, at para. 18, that:

In addition, it is clear that this is not an issue that requires further consideration by this court. The legal principles at issue have already been addressed by this court. The issue raised by the Crown relates to the appeal judge’s application of these principles and does not require guidance from this court.

[33] In my view, nothing is to be gained from clarifying what this court has made clear, that it must be acts of due diligence geared towards the specific violations.

[34] Third, I see nothing in the reasons of the POAC judge that supports the Crown’s assertion that he failed to properly understand the interplay between the concept of control of the workplace and the necessary elements of the due diligence defence. Instead, the reasons of the POAC judge are responsive to the specific arguments advanced by the Crown about control. This is not surprising given Martin J.’s comments about the relevance of control in the analysis of the due diligence defence. Furthermore, I see nothing in the POAC judge’s reasons that suggest that he erred in his assessment of the due diligence defence by reversing the burden of proof and requiring the Crown to demonstrate that the respondent did have control over the workplace.

[35] Fourth, I am not convinced that this case raises issues that go beyond the application of the defence to this set of facts. Put another way, the respondent’s submission that the Crown’s appeal is primarily fact-driven is well taken. The Crown appears to argue that the respondent had the requisite level of control to do more than what it did on the day of the accident, while also arguing that control was improperly the focus of the POAC judge’s analysis. The trial judge found that as an employer, the respondent did not have the right to control the worksite and if they had, they risked becoming the constructor. She then went on to list examples of what the respondent did do that was within their control. This is consistent with Martin J.’s observations that the fact-finder should look at the level of control that the employer had, in order to consider what realistic options were available to them in determining if they acted with the requisite diligence. The finding of the trial judge and the POAC judge that the respondent did not have control over the workplace/workers is a factual finding, or at best a question of mixed fact and law, and not a basis for granting leave to this court for a second level appeal.

[36] In sum, while this court has held that the application of the due diligence defence to a set of facts can constitute a question of law for the purposes of leave under s. 131 of the POA, I do not think that the issues raised by the Crown meet the high bar set by this court in granting leave. Although what occurred to the victim was tragic, this is not one of the exceptional cases raising issues of broad public importance that would justify a further appeal to this court.

III. Disposition

[37] The application for leave to appeal is denied. This is not an appropriate case for costs.

“Steve Coroza”

[1] Karakatsanis, Rowe and O’Bonsawin JJ. disagreed with their colleagues that liability under s. 25(1)(c) of the Act did not require a determination of the employer’s control over the workplace. They would have remitted the matter back to the trial court to determine if the relevant provisions of the Regulation related to the respondent and thereby fell within its duty under s. 25(1)(c) of the Act. Côté J. would have restored the acquittals entered by the trial judge, as the respondent had no involvement or control over the work related to the obligations under the Regulation.