The City of Greater Sudbury was liable as an employer in the 2015 death of a pedestrian at the site of a water main improvement project.
The Supreme Court of Canada upheld this finding in today’s split decision by dismissing an appeal filed by the City of Greater Sudbury.
Justice Sheilah Martin’s ruling concluded, “The City was liable as an employer for breaching its obligations under section 25(1)(c) of the Act.”
The “act” in question is the Occupational Health and Safety Act, and 25(1)(c) stipulates that the employer, “Shall ensure that the measures and procedures prescribed are carried out in the workplace.”
Interpaving Ltd. was previously tried and convicted for breaching this same section of the act.
The more than eight-year path to the Supreme Court of Canada’s Nov. 10 ruling dates back to Sept. 30, 2015.
On that day, Cécile Paquette, 58, was killed at Elgin Street and Beech Street after being run over by a grader driving in reverse at the site of a water main improvement project.
“Contrary to the accompanying regulation ... no fence was placed between the construction project workplace and the public intersection, and no signaller was assisting the Interpaving worker,” the Supreme Court’s Nov. 10 ruling notes.
Both the contractor, Interpaving Ltd., and the City of Greater Sudbury were charged by the Ontario Ministry of Labour in relation to the incident.
Meanwhile, the City of Greater Sudbury barred Interpaving from bidding on road work contracts until March 21, 2020.
Interpaving was charged with not providing signallers for the grader operator, not erecting a 1.8-metre "sturdy fence" to separate the public from the construction site and not implementing a traffic protection plan.
The city faced charges relating to the same three offences, as well as not ensuring that Interpaving was following those three sections of the Health and Safety Act. The city also faced an additional charge of not ensuring that all "workers and employers" were following provincial safety laws in general.
Interpaving was found guilty under the Occupational Health and Safety Act, and fined $195,000, plus a 25 per cent victim surcharge.
(Parallel to this, Paquette’s family filed a $2-million lawsuit against the City of Greater Sudbury, Interpaving, and the grader’s driver. Interpaving settled and paid $350,000 to the family.)
The City of Greater Sudbury pleaded not guilty to the Ontario Ministry of Labour charges on March 28, 2018.
A trial was held that year, after which Judge Karen Lische dismissed all charges against the city.
Lische noted in her ruling that the Ministry of Labour failed to prove beyond reasonable doubt the city had control of the worksite at the time of the incident, and that as the owner of the project, the city had no obligation to ensure Interpaving and its workers complied with the Occupational Health and Safety Act.
The Ministry of Labour appealed this decision, arguing Lische’s decision to dismiss the charges was incorrect, arguing the city played a more active role in the project.
At issue in the dispute regarding responsibility were the legal definitions of “employer,” versus “constructor.”
“The city conceded it was the owner of the construction project and acknowledged that it sent quality control inspectors to the project, but denied that it was an employer, arguing that it lacked control over the repair work and had delegated control to Interpaving,” the Supreme Court of Canada would later note in their Nov. 10 ruling.
In 2019, Superior Court Justice John Poupore rejected the ministry's appeal, and ruled Lische was correct in her 2018 decision to absolve the city from responsibility.
The Crown appealed the dismissal, and the Court of Appeal ruled the city was an employer within the meaning of the Occupational Health and Safety Act and, as a result, was liable.
The city appealed that ruling, and the Nov. 10 Supreme Court of Canada ruling upheld the Court of Appeal’s decision to find the city liable for the incident.
Drawing from case law, the authors of the court’s prevailing ruling (headed by Martin) noted, ”a person can be an employer under the (Occupational Health and Safety Act), even where they lack control over the worker or the workplace.”
They also note, “The case law is clear that one employer cannot point a finger at another employer who might be closer to the situation. Every employer has a duty to see that the workplace is safe. And in the complexity of construction it is important that every employer use knowledge, due diligence, etc., to ensure that the workplace is safe. An employer is not entitled to say it is someone else’s responsibility.”
As such, the City of Greater Sudbury “breached its duties as employer,” the court’s prevailing ruling noted.
“On the date of the pedestrian’s death, the measures required by (the Occupational Health and Safety Act) — a fence between the construction work and the public way, and signallers — were not carried out in the workplace,” according to the ruling. “Thus, the city, as employer, committed the offence.”
Martin (with fellow Justices Richard Wagner, Nicholas Kasirer and Mahmud Jamal in agreement) ruled to dismiss the City of Greater Sudbury’s appeal, and reaffirmed the Court of Appeal’s order to remit the matter of the City’s due diligence defence to the provincial offences appeal court.
Although Martin ruled the city was in breach of its obligations, “an employer who has breached its duty can nevertheless defend itself on the basis that it acted with due diligence,” a Supreme Court of Canada spokesperson told Sudbury.com.
They noted it will be up to the city to prove that it took all reasonable steps, which will be determined by the provincial offences appeal court.
“It may be open to a judge to find that the owner took every reasonable precaution because the owner decided to delegate control of the project and responsibility for workplace safety to a more experienced constructor,” the judges noted in their ruling. Relevant information might be such things as whether the city adequately pre-screened Interpaving before hiring them.
“Another consideration might be whether after executing the contract the owner informed the constructor of any hazards at the workplace and monitored the quality of the constructor’s work.”
They also note that the city sending inspectors to the worksite to monitor Interpaving’s work “does not condemn the city for supervising Interpaving or otherwise discourage it from doing so. Those efforts may well assist the city in establishing due diligence and escaping liability.”
Although the Supreme Court of Canada’s prevailing decision was to dismiss the City of Greater Sudbury’s appeal, two dissenting opinions were also submitted by Supreme Court judges:
- Justices Malcom Rowe and Michelle O’Bonsawin (with Andromache Karakatsanis agreeing) contended that the City’s appeal should have been allowed and remitted the matter to the Ontario Court of Justice.
- Justice Suzanne Côté would have allowed the appeal and restore the City’s acquittals entered by the trial judge.
“The City is currently reviewing the decision of the Supreme Court and evaluating next steps,” a City of Greater Sudbury spokesperson told Sudbury.com.
“As the issue of due diligence has been returned to the provincial offences appeal court for determination, the City is unable to speak to matters that remain in litigation.”
Tyler Clarke covers city hall and political affairs for Sudbury.com.
