KCLB-47- April 3, 2025 | Kennaley-Const.-Law

April 3, 2025

The R. v. Sudbury saga in Ontario is finally over: important takeaways for construction participants

The long saga of R. v. Sudbury is finally over. The City had been acquitted at trial in relation to a fatality on the site of one of its construction projects at which the contractor was the “constructor” for the purposes of the Occupational Health and Safety Act (the “Act”). The acquittal was overturned by Ontario’s Court of Appeal on the basis that the City was as an “employer”, and the Supreme Court of Canada then split on the City’s subsequent appeal. This resulted in the original acquittal being sent back to a lower-level appeals court, on the question of whether or not the City had a “due diligence” defence to the charges. After the acquittal was again upheld, the Ministry of Labour moved for leave to appeal that decision back to the Ontario Court of Appeal. The decision of the Court of Appeal was released this week and should be of interest to most everyone involved with on-site construction in Ontario. As the case is not yet publicly available, a copy is attached below.

The facts were tragic: a pedestrian was killed by a road grader operated by the contractor while crossing a street on the perimeter of a City Hall project. While the contractor was the “constructor” for purposes of the Act, the City had an employee on site whose job included reviewing progress for quality control. In acquitting the City, the trial judge found that the City had no obligation under the Act to guard against the injuries suffered because it was not, in the circumstances, an “employer” or “constructor” within the meaning of the Act. She also held that, if she was wrong in that regard, the City had in any event established a “due diligence defence”.

Over-simply put, an employer charged with a violation of the Act can establish a due diligence defence, and avoid a conviction, by showing that it did everything reasonable in the circumstances to ensure that the violation would not occur. In this regard, however, all reasonable steps must be taken in relation to the violations in issue. Steps taken to ensure general health and safety do not suffice.

In finding that the City had made out a due diligence defence, the trial judge had held that the City had taken all reasonable precautions, noting that the City had (amongst other things):

hired the contractor following a usual tendering process;
required the contractor to have safety training specifically designed for City projects;
paid a premium for the contractor’s services; and
previously notified that contractor of certain health and safety issues and followed up when matters were not rectified.

The Crown’s appeal of the acquittal to the Provincial Offences Appeal Court (the “POAC”) was dismissed on the basis that the City, as owner, was not an employer. The POAC did not deal with the due diligence defence, although the Crown had also appealed from that finding.

The Crown appealed the POAC decision to the Ontario Court of Appeal. There, the City argued that on a proper reading of the Act, the constructor has both the responsibility for, and control over, safety on a construction site. The Act does not, it argued, require an owner to assume control over safety where it simply appoints an employee to monitor progress on the site, especially where the Act already requires the constructor to exercise that control. The Court of Appeal disagreed (Ontario (Labour) v. Sudbury (City), 2021 ONCA 252 (CanLII). Contrary to the City’s arguments, it found nothing in the Act which would limit an employer’s obligations simply because there was also a constructor on site, and noted prior case law which makes it clear that there will be overlapping duties wthere there is more than one employer in a workplace.

The City appealed to the Supreme Court of Canada, which rendered a split, contentious, four-four decision.[1] (R. v. Greater Sudbury (City), 2023 SCC 28 (CanLII).Justice Martin, who wrote for those that agreed with the Court of Appeal, took a “belt and braces” approach to the Act’s interpretation: overlapping obligations are imposed, and the level of control over the workplace is not relevant to whether or not the owner is an employer for the purposes of the Act. The remaining Justices strongly disagreed. Justices Rowe and O’Bonsawin, for example, objected that:

“The Ministry argues that as soon as a worker is present at the workplace, their employer is liable for complying with all regulatory measures. … What this interpretation effectively means is that everyone who employs anyone is responsible for everything that anyone does. It would be absurd to interpret s. 25(1)(c) and the Regulation as obligating every employer at a construction project to ensure compliance with all the measures contained within the Regulation”. (at para. 105)

Because the Supreme Court’s decision was split, the underlying decision was not overturned. The Court of Appeal decision accordingly stands as the law in Ontario. Other provinces, of course, might take a different approach. In Ontario, the decision resulted in a fair bit of confusion and concern for construction owners, who have struggled with how to keep employees out of the project (to ensure no “workplace” is created) and monitor progress without effectively assuming the role of “constructor”. In the meantime, the question of whether the trial judge erred in finding due diligence was returned to the Provincial Offences Appeal Court, where the trial judge’s decision was again upheld.

The Ministry then moved for leave to appeal that decision to the Ontario Court of Appeal.

In an interesting turn, the Court of Appeal returned to the issue of “control”: although control over the project was not a factor to be considered in determining whether the owner had the obligations of an “employer”, control was nonetheless a factor to consider in determining whether the owner had met those obligations. In writing for the Court in this regard, Justice Coroza referenced Justice Martin’s reasons in the Supreme Court:

“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.” (at para. 11, below)

Justice Coroza also followed Justice Martin in confirming that the factors to be considered in relation to due diligence where there is a constructor involved include:

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. (at para 12, below)

The POAC judge found (among other things) that the trial judge was entitled to find, on the evidence, that the City had shown due diligence because it did not have control over the workplace (despite the presence of its employee), it had assessed the contractor’s capacity to perform the work safely, and had monitored and supervised the contractor’s work (for example by its giving notices about visible breaches and conveying public complaints to the contractor). As Justice Coroza summarized the POAC decision:

“In conclusion, the POAC judge also held that if the City had “exercised the amount of control over the project that was urged by the [Crown],” the [City] 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.” (at para. 19, below)

In moving for leave to appeal the POAC decision to again uphold the acquittal, the Crown argued that the POAC judge had erred in accepting the trial judge’s incorrect interpretation of the defence of due diligence. As per Justice Coroza, it argued that the trial judge erred in finding due diligence was established through acts unrelated to actual violations and, also, that he had failed “to properly understand the interplay between the concept of control of the workplace and the necessary elements of the due diligence defence”. In relation to the first argument, while Justice Coroza confirmed that due diligence can only be shown with reference to steps directed at the specific violations in issue, he was “not convinced” that the trial judge had erred in this regard. As regards the second argument, Justice Coroza held as follows:

“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.” (emphasis added; at para. 35, below)

In the end, the motion for leave to appeal the due diligence finding was dismissed. We suggest that the decision is good news for employers on projects where a constructor has been appointed and believe that the following takeaways are important:

the “boots and braces” approach is the law in Ontario: owners (and other employers) will have occupational health and safety obligations in relation to construction projects on which they have employees, regardless of the extent to which a constructor has been appointed;
it is not, however and as Justices Rowe and O’Bonsawin cautioned, that “everyone who employs anyone is responsible for everything that anyone does” or that every employer at a construction project will be required “to ensure compliance with all the measures contained within the Regulation”;
rather, the level of control which the employer has over the workplace, particularly where a constructor has been reasonably appointed, will be a factor to consider in determining whether the employer has a due diligence defence; and
owners should accordingly take steps to ensure, within the four corners of what they have control over, that the Act is followed. Although every project is different, such steps might include:

ensuring that their contract documents expressly set out what degree of control over safety is expected of the owner/employer;
having reasonable confidence that the constructor is capable of meeting the constructor’s obligations and being able to demonstrate where the confidence comes from (be it through reviewing experience, requesting policies or insisting on training, etc.);
having reasonable confidence that the constructor is actually meeting its health and safety obligations on an ongoing basis (for example through spot auditing, attending at safety meetings, etc.); and
ensuring that if anyone in their employ sees something, they say something and then follow up, while expressing a zero tolerance for safety related problems.

Rob Kennaley and Joe O’Hearn

Kennaley Construction Law

[1] only eight justices delivered the decision because Justice Russell Brown, who had heard the case, resigned from the court before the decision was issued.