Ontario (Ministry of Labour, Immigration, Training and Skills Development) v. Greater Sudbury (City)
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING IN RIGHT OF ONTARIO (Ministry of Labour, Immigration, Training and Skills Development)
Respondent/Crown
– and –
The Corporation of the City of Greater Sudbury
Appellant/Defendant
COUNSEL:
David McCaskill, for the Respondent/Crown
Ryan J. Conlin, for the Defendant/Appellant
HEARD: June 22, 2026
DECISION ON APPEAL
CORNELL J.
Introduction
1This is an appeal from a trial decision whereby The Corporation of the City of Greater Sudbury (the “City”) was convicted of two offences under the Occupational Health and Safety Act, R.S.O. 1990, c. O. 1, as amended (“OHSA”). In accordance with the reasons that follow, the appeal is allowed.
Background
2The facts were largely not in dispute and a detailed Agreed Statement of Facts was filed at the commencement of trial.
3A notable Sudbury landmark consists of six tall concrete silos which are locally known as the Flour Mill site. The operation of the site as a flour mill ended many years ago. Approximately 60 years ago, the City became the owner of the Flour Mill property.
4As a result of the disrepair of the silos and the need to generally clean up the site, the City hired C.K. Construction (“C.K.”) to undertake a rehabilitation process that would make the site safe for public use.
5The site was overgrown with vegetation, and there were biohazards that consisted of hypodermic needles. C.K. was to remove the biohazards, clean up the ground vegetation, undertake fence repair as well as repair of loose concrete and brick on the concrete silos.
6In order to undertake the repair of the silos, a mobile elevating work platform was brought on the site. After completing certain work on the silos, an “all clear” by the ground foreman was issued. While the man basket containing a C.K. employee was descending from approximately 90 feet, the left front wheel sank into an old, covered drinking fountain service box with the result that the basket tipped over and landed on the ground. The C.K. employee inside it was seriously injured.
7After investigating the matter, the Ministry of Labour laid two safety charges against the City, pursuant to ss. 25(2)(a) and 25(2)(d) of the OHSA.
Issue
8It was conceded that the actus reus had been established. As the offences charged constitute strict liability offences, the only issue to be determined at the time of trial was whether the City had taken such steps so as to establish a defense of due diligence.
9The trial judge concluded that the City had not taken all reasonable efforts and accordingly convictions were entered for both charges.
Analysis
Applicable Standard of Review
10If the matter involves a question of law, the standard is correctness.
11Questions of mixed fact and law are subject to a review standard of palpable and overriding error.
12The City was both the owner and employer. C.K. was the constructor.
13Count one alleged that the City failed as an employer to provide information, instruction, and supervision to protect the safety of a worker: s. 25(2)(a) OHSA. This was particularized as the “Presence of Underground Structures”.
14Count two alleged that the City failed as an employer to acquaint a worker with any hazard in the work: 25(2)(d) OHSA. The conviction for this count was subsequently stayed in accordance with the principle in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
15In order to satisfy the obligation that rested upon it, the City undertook a search of its records. This search included the archives, some building services department resources, planning documents, as well as searches to verify no minor variances, building permits, or by-law infractions. A search to show any work or as-built conditions on the site found no records. C.K. understood that there were no records or available as-built drawings and accepted the risk.
16The Flour Mill site is adjacent to a main thoroughfare, namely Notre Dame Avenue. A search of the municipal records indicated that although there was a water main running under Notre Dame Avenue, no record of a lateral water line to service the Flour Mill site could be found.
17On May 3, 2022, a kick-off meeting was held at the site. The meeting was a “walk through”, allowing the City to introduce C.K. to the site and to point out potential hazards. The City representatives included Jason Radley, Building Services Technician, Nick Najdenov, Coordinator of Capital Projects, and James St. John. C.K. attendees included Alain Trottier and Jason Desrochers, the president of C.K.
18The City was only aware of one underground structure on the site. At trial, Mr. Najdenov testified that the hazards discussed during the walk-through included the fountain structure and remnants of the fountain box, including black pipes that would indicate an underground structure. Mr. Desrochers testified that City representatives ensured he was made aware of a water fountain box underground structure and agreed that piping on the site was an indication of an underground structure. This was not the underground structure that led to the incident.
19The ability to conduct a more thorough walk of the property was limited by the vegetation and accumulation of topsoil as well as the presence of biohazards.
Due Diligence
20The Supreme Court of Canada defined the test for due diligence in R. v. Sault Ste. Marie, [1978] 2. S.C.R. 1299 where the court stated at p. 1326:
Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances.
21In R. v. Gonder, 1981 CanLII 3207 (YI TC), the Court expanded on the standard of reasonable care:
Reasonable care implies a scale of caring. The Reasonableness of the care is inextricably related to the special circumstances of each case. A variable standard of care is necessary to ensure the requisite flexibility to raise or lower the requirements of care in accord with the special circumstances of each factual setting. The degree of care warranted in each case is principally governed by the following circumstances:
(a) Gravity of potential harm.
(b) Alternatives available to the accused.
(c) Likelihood of harm.
(d) Degree of knowledge or skill expected of the accused.
(e) Extent [to which] underlying causes of the offence are beyond the control of the accused.
21The Supreme Court of Canada recently clarified that due diligence is not a standard of perfection, in R. v. Greater Sudbury (City), 2023 SCC 28, 487 D.L.R. (4th) 387, at para. 56:
Indeed, “[r]easonableness of care is often best measured by comparing what was done against what could have been done” (Gonder, at p. 333). “What could have been done” is necessarily limited to steps or measures that are within the workplace actor’s control and thus capable of being carried out.
22The decisions in Sault Ste. Marie, Gonder, and Greater Sudbury make it clear that the reasonableness of the efforts undertaken is a fact driven process dictated by “the special circumstances of each case”. As Gonder indicates, alternatives available to the accused and the extent to which the underlying causes of the offence are beyond the control of the accused must be taken into consideration. In this case, the trial judge failed to consider those requirements that involved consideration of a question of mixed law and fact.
23Although the trial court was well aware of the steps taken by the City, the trial decision failed to consider whether other steps were available to prevent the commission of the offence.
24What could the City have done to demonstrate that the reasonable due diligence requirements had been met? As has been detailed, an extensive review of the municipal records disclosed that no records were available.
25The second thing that the City could do was to examine the site itself, something that was done at the time of the kick-off meeting. As has been detailed, the ability to conduct such a site review was quite limited given the site conditions.
26A third source of information would consist of actual knowledge of the danger or hazard, but it is uncontested that the City had no knowledge of the underground structure that led to the collapse.
27At pages 4 and 5 of her reasons for decision, the trial judge reiterated the following facts which were set out in the parties’ Agreed Statement of Facts and which she acknowledged were not in dispute:
(a) An underground utility vault with a metal access hatch locked with a U-key was located on the front west side of the silos containing redundant control valves and piping to service the old water foundation. The rectangular utility vault had four concrete walls, and a floor covered in mud and debris, but assumed to be concrete as a solid base was contacted when the mud was probed with a rod.
(b) In its investigation, the Ministry determined the concrete slabs spanning the walls of the utility vault was covered with soil prior to the accident.
(c) The soil level along the perimeter of the vault suggested the concrete slab had been buried under the soil.
(d) From an engineering perspective the cause of the incident was inadequate ground support for the tire loads of the mobile electronic work platform. The mobile electronic work platform had been positioned with the left front wheel directly above a void in the ground, being an underground utility vault. The concrete slab which covered the underground void was unable to resist the tire load of the mobile electronic work platform. The concrete slab collapsed, the wheel fell into the vault, and the mobile electronic work platform tipped.
28After acknowledging the fact that a fountain box was identified at the kick-off meeting, the trial judge goes on to find that the disclosure of the existence of the fountain box with pipes in the ground:
… did not discharge the City to provide the information to protect the safety of the workers at the flour mill site.
I find the City failed to provide information to C.K. to protect the safety of the workers, at the work place, about the presence of the underground vault. I also find the City did not acquaint the workers about the hazards in the work place. I am satisfied the actus reus for counts one and two are established.
29When the trial judge turns to consider whether the City had acted with due diligence, she holds:
Accordingly, I find the City did not take every precaution reasonable in the circumstances to avoid the commission of failing to provide sufficient information of underground structures or to acquaint the worker with the hazard. I find the City did not establish a due diligence defence.
30In coming to this conclusion, the trial judge based this finding on the fact that “the entire site was not walked with C.K. at the kick-off meeting”.
31The fact of the matter is that given the existence of the vegetation and the biohazards, it was not possible to walk the entire site.
32C.K. had, in fact, been hired to do the very work that prevented a walk of the entire site from being undertaken. In other words, it was C.K. that was to undertake the work to clear the vegetation, remove the biohazards and otherwise make the site safe for public access.
33The law is clear that an owner/employer can hire an entity with the experience and expertise to undertake work that cannot be safely performed by an owner/employer. That is exactly the reason why C.K. was hired to undertake this work as C.K. had the requisite experience and expertise.
34The expertise of C.K. was detailed by the trial judge as follows:
The City hired an experienced and competent constructor. C.K.’s safety manual included conducting hazard assessments. It directly rented the equipment necessary to complete the work. Its workers were expected to review the rental equipment owner’s manual, which provides operators ensure adequate ground surface. It had considerable remediation experience, and its worker was trained and certified to operate the machine.
I find the parties agree, C.K. was the constructor and had control of the flour mill site. Further, the City did delegate control to C.K. to overcome its own lack of skill, knowledge or expertise to complete the project in compliance with the Act. The City demonstrated it was satisfied C.K. had the required expertise to perform the work and enforce compliance with the Act. As conceded by the Crown C.K. had the expertise to perform the work.
35Even if the site condition allowed for a walk of the entire site, the fact remains that such a walk would still not have resulted in the discovery of the underground structure that caused the accident. The evidence was clear that the surface of the area of this underground structure was unremarkable. The evidence further indicated that the underground structure in question was buried under topsoil. C.K. itself had no reason to believe that there was an underground structure in the area in question as they had driven a skid steer over it.
36The uncontradicted evidence makes it clear that a more robust inspection of the site would not have led to the identification of the hazard.
37In rejecting the due diligence defence offered by the City, the trial judge makes a finding of fact on two occasions that the City failed to advise C.K. about the “hidden hazard”. The trial judge then goes on to conclude:
The City did not take all reasonable precautions to prevent the commission of the offences, and efforts were little more than perfunctory and clearly inadequate. Other steps were available, such as a more robust site inspection, but were not taken. Any mistake in belief the City pointed out all hazards on the site was not objectively reasonable.
38The efforts of the City were not perfunctory. A more robust site inspection was not possible for the reasons previously outlined.
39During the trial, no “other steps” are in evidence. The trial judge reached this conclusion without any supporting evidence.
40When during the course of the appeal counsel for the respondent was asked what other steps could have been undertaken, it was suggested that Lidar could have been used. When it was pointed out that Lidar could not have been undertaken without the vegetation and biohazards having been removed, respondent’s counsel suggested the City could simply have excavated the site.
41These suggestions simply serve to reinforce the fact that the City did make all reasonable efforts to provide information and a safe work site. Given the lack of municipal records, the City’s lack of knowledge of the underground structure that failed, and the site conditions, the overwhelming evidence indicates that the City took all reasonable efforts to comply with its statutory obligations.
42The fact of the matter is that the evidence makes it clear that the underground structure that constituted the hazard that led to the incident was a latent defect of which both the City and C.K. had no knowledge whatsoever.
Conclusion
43Respectfully, the trial judge’s finding that the City failed to provide information to protect the safety of the workers and failed to advise about the hazards in the work place is not supported by the evidence nor is the finding that the City did not take all reasonable precautions to prevent the commission of the offences.
44Although the trial judge finds that “other steps were available”, there was no evidence brought forward during the course of the trial to support this conclusion.
45A more robust site inspection was not possible due to site conditions. The experience and expertise of C.K. was required to remediate the site.
46The latent underground defect that constituted the hazard was beyond the knowledge of the City and C.K. who was responsible for ensuring that site conditions were such that a mobile elevating work platform could safely be used.
47I am of the opinion that the lack of evidence to support the conclusions drawn by the trial judge and the speculation that there were other steps available constitute palpable and overriding errors: Waxman v. Waxman, 2004 CanLII 39040 (ON CA), 44 B.L.R. (3d) 165, at para. 296.
48The appeal is allowed. An order shall issue acquitting the City on both counts one and two.
The Honourable Mr. Justice R. Dan Cornell
Released: July 10, 2026
CITATION: Ontario (Ministry of Labour, Immigration, Training and Skills Development) v. Greater Sudbury (City), 2026 ONSC 3671
COURT FILE NO.: CR-26-206-00AP
DATE: 2026-07-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING IN RIGHT OF ONTARIO (Ministry of Labour, Immigration, Training and Skills Development)
– and –
The Corporation of the City of Greater Sudbury
DECISION ON APPEAL
Cornell J.
Released: July 10, 2026