Angela Gismondi
Special to Ontario Construction News
It’s been more than a year since the R v. City of Greater Sudbury court decision shocked the construction industry, but it’s not over yet.
That was the message from Annik Forristal, co-group head of McMillan LLP’s National Infrastructure and Construction Group, during a session entitled Insights and Updates to the Supreme Court of Canada Ruling in R v. Greater Sudbury at the Buildings Show in Toronto Dec. 6.
In September 2015, the City of Sudbury contracted with Interpaving Ltd. to repair a downtown watermain. An Interpaving employee was reversing a grader at the project site. There was no fencing or road signaller present as required by the regulation under the Occupational Health and Safety Act (OHSA) and a pedestrian was fatally struck by the grader.
The Ministry of Labour, Training and Skills Development investigated and charged the City and Interpaving.
“What was a surprise was the city being charged as an employer,” said Forristal. “They weren’t the constructor responsible for erecting that fencing or having the signaller present, but they were never-the-less charged for having failed as an employer to provide the signaller and to ensure that the fence was erected.”
Forristal explained that an unusual occurrence involving a bar fight in Nashville, Tenn. prevented one Supreme Court judge who was sitting on the panel of nine judges from participating in the decision. That led to a very rare 4-4 split.
The Ontario Court of Appeal found the City was an employer because they employed a worker on the site and that decision was upheld by the Supreme Court of Canada.
“Further, the city was an employer even if they hadn’t had a single employee of theirs set foot on the site,” Forristal explained. “By virtue of the fact that the City entered into a contract with the contractor Interpaving, or if they’d entered into a contract with a trade for performance of work at the site that alone, makes you an employer.”
“What happens when the Supreme Court of Canada decision is split is that it is not binding,” she added. “It is persuasive … and so instead what happened here was it was upholding the Ontario Court of Appeal decision.”
The Court of Appeal also found that as an employer, the city did breach its obligations.
“As for the question of due diligence, they did not turn their minds to that,” Forristal said. “They sent that question back to the lower court.”
In August 2024, the Ontario Superior Court of Justice dismissed an appeal by the Crown who challenged the trial judge’s earlier finding that the City of Greater Sudbury exercised due diligence.
Since those decisions were handed down, owners, constructors and health and safety professionals have been questioning the roles and responsibilities of the different parties when it comes to safety on a construction site.
What it means is you will be an employer under the OHSA if you hire a contractor to perform construction work and/or if you send your own employees to a construction site including architects, engineers and consultants, Forristal noted.
“This introduced uncertainty about what our obligations are as employers under the Occupational Health and Safety Act to make sure that the constructor is doing their job,” said Forristal. “To be very clear, the constructors obligations have not changed. The constructor is still the lead person responsible for health and safety and the question then becomes for all the other employers on the site, what are our responsibilities, what are your responsibilities as an owner, consultant or another trade, for example, at the site.”
The MLTSD is looking to appeal the most recent court decision.
“They’re requesting permission to challenge this decision at the Court of Appeal, that motion is being heard next week,” Forristal noted.
“If they are granted leave, the Court of Appeal will now make a decision on this question and we will have to wait and see what comes of that. The point being this isn’t over, there is still more to come in this line of cases.”
The expert panel also included David Frame, president, Frame GR Corporation; Anil Nair, associate, employment & labour law, KPMG Law LLP; Enzo Garritano, president and CEO, Infrastructure Health and Safety Association; and Alex Ewing, executive director, Ontario Construction Users Council.
Key takeaways from lawyer Annik Forristal’s presentation on what the industry can expect going forward include:
- In procurement, expect to see more requirements for establishing and maybe asking more frequently for proof of certification.
- More stringent and detailed contract terms saying, ‘here’s what is expected of you.’ We need to watch out for people, particularly owners, overstepping. “It’s one thing to monitor and supervise, it’s another to become the constructor yourself and start directing health and safety. That is something to be very cautious about because it might feel like you’re doing the right thing and protecting yourself when in fact you’re shooting yourself in the foot,” Forristal noted.
- When it comes to project administration, particularly from the constructors’ side, while obligations haven’t changed, those of the project parties and their perspective on what their obligations are have. Anticipate more communications to be managing, more paperwork, documentation being requested by clients as everyone tries to manage their obligations and ensure that should something happen, they can show that they have been duly diligent.