In reaction to the Supreme Court of Canada’s recent ruling against them, the City of Greater Sudbury is advocating for changes to the Occupational Health and Safety Act.
The nation’s top court ruling that the City of Greater Sudbury is liable in the death of a pedestrian in 2015 is not right, Mayor Paul Lefebvre told Sudbury.com, “hence we’ll be asking to clarify the legislation.”
A unanimous city council passed a motion during their Dec. 5 meeting to request the province amend the Occupational Health and Safety Act “to clarify the definition of ‘employer’ to exclude owners that have contracted with a constructor for a project.”
The motion was sparked by the Supreme Court of Canada’s 4-4 ruling on Nov. 10 to dismiss a City of Greater Sudbury appeal in which they sought to deny responsibility for the death of Cécile Paquette, 58, who was killed at Elgin Street and Beech Street after being run over by a grader driving in reverse at the site of a municipal water main improvement project.
Both the contractor, Interpaving Ltd., and the City of Greater Sudbury were charged by the Ontario Ministry of Labour in relation to the incident.
The legal process since that time has been long and winding, and resulted in Interpaving being found guilty under the Occupational Health and Safety Act for failing to put proper safety procedures in place. They were fined $195,000 plus a 25-per-cent victim surcharge.
The City of Greater Sudbury pleaded not guilty, and Judge Karen Lische dismissed all charges against the city in 2018.
A series of appeals followed, with the Supreme Court of Canada ultimately finding the City of Greater Sudbury liable, and that it “breached its duties as employer.”
The key point of contention had to do with the legal definition of “employer,” with the city contending that they were the owner and therefore not responsible for what happend at the worksite. The court’s ruling clarifies that owners are employers, and are therefore responsible.
City solicitor and clerk Eric Labelle told Sudbury.com the clearest analogy to help understand the city’s concern was submitted by dissenting Supreme Court Judges Malcolm Rowe and Michelle O’Bonsawin (with Judge Andromache Karakatsanis concurring).
Their analogy tells the story of a homeowner who hires a contractor to repair their attic. During the repair, a subcontractor falls from a ladder which did not meet regulator specifications.
“Should the homeowner be liable as soon as they employed an individual who entered the attic?” the judges asked.
This, the judges argue, is one of the “absurd outcomes” that flow from the Ontario Ministry of Labour’s interpretation of the Occupational Health and Safety Act.
In the preamble portion of the motion city council passed on Dec. 5, warns that the court decision might have wide-ranging implications.
“Municipalities in Ontario, as well as all other owners of property in the province, who wish to undertake construction, are subject to being charged and convicted as an employer for offences in relation to project sites for which they have no control and have, in accordance with the Act, contracted with an entity to assume plenary (absolute) oversight and authority over the work on such site as the constructor.”
The Supreme Court’s ruling “means we are liable even though a third-party is contracted to do the work, and even though we can meet all of our duties as the owner asking for the work,” Lefebvre told Sudbury.com.
Various elected officials at the provincial level, including Premier Doug Ford, and municipal advocacy groups are slated to be forwarded city council’s Dec. 5 resolution.
To date, the City of Greater Sudbury has spent approximately $667,000 in legal costs related to the Ontario Ministry of Labour charging them in 2016 for Paquette’s death the previous year.
Tyler Clarke covers city hall and political affairs for Sudbury.com.
