R v Greater Sudbury: Belt and Brace Yourself for this Decision
In R v Greater Sudbury (City) 2023 SCC 28, the Supreme Court of Canada (“SCC”) decided the “belt and braces” theory for workplace safety warrants treating project owners as employers under the Occupational Health and Safety Act, RSO 1990, c O1 (“OHSA” or “Act”) when they hire a constructor, resulting in the duties for owners under the OHSA expanding beyond those explicitly for owners to include those for employers. The “belt and braces” theory posits that multiple parties should be liable on projects so that potentially unsafe conditions are less likely to slip through the cracks, “employer” should be interpreted broadly to ensure many relevant parties are liable. The SCC split over whether the specifics of an employer’s control of the workers and worksite limits the duties of employers under s. 25(1)(c).
This determination arose in the context of a fatal accident involving a pedestrian struck by construction equipment coming from a construction site operating under conditions breaching multiple provincial regulations. The OHSA requires that both constructors (s. 23(1)) and employers (s. 25(1)(c)) connected to a worksite ensure that the worksite complies with provincial regulations. The offences are strict liability, which means that the Ministry of Labour (“Ministry”) only needs to prove the regulations were breached, regardless of fault, to charge an employer. Employers can then defend themselves with a “due diligence defence” defined in s. 66(3)(b) as “prov[ing] that every precaution reasonable in the circumstances was taken.”
The relevant charge in this appeal was against the City of Greater Sudbury (“Sudbury”) as an employer under s. 25(1)(c). The city disputed that they were an “employer” under OHSA as their primary defence to the charge.
The OHSA defines an employer in s. 1(1) as:
“[A] person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services;”
Sudbury owned a construction project and employed Interpaving Limited to serve as the constructor for the project. As constructor, Interpaving Limited was contractually responsible for controlling and completing the entire project, subcontracting where necessary. Sudbury took a hands-off approach, occasionally sending quality-control inspectors to the site to check workmanship quality, so they had virtually no control of the worksite and no control of the many other employees on the worksite (para 1). In 2015, an Interpaving Limited employee fatally struck a pedestrian with a road grader while reversing. The Ministry investigated and found the road grader’s operator did not have anyone signalling that the way was clear, and a fence was missing that would otherwise separate them from the relevant intersection, breaching Construction Projects, O Reg 213/91 ss. 65 and 104(3) (para 1). Sudbury was charged both as a project constructor and an employer for breaching these two regulations.
The trial judge acquitted Sudbury of the charge, finding the city was not an employer. The trial judge concluded that since Sudbury did not control the worksite location or workers present, it could not be an employer despite control not being mentioned in the s. 1(1) definition. Even if Sudbury had been an employer, per the trial court, the city was protected under the due diligence defence because they could not have done more given their lack of project control (para 3). The provincial offences appeal court affirmed the decision that Sudbury was an employer but did not judge on the due diligence defence or anything else.
The Ontario Court of Appeal (“ONCA”) permitted an appeal on whether Sudbury was an employer. ONCA applied R v Wyssen (1992), 10 OR (3d) 193, which defined “employer” broadly, and sent the determination back to the provincial offences appeal court to review the due diligence defence. Sudbury appealed to the SCC regarding whether they were an employer and, if so, whether control plays any role in limiting regulatory prosecutions against employers under s. 25(1)(c) of the Act to the SCC (para 3).
At the SCC
The decision at the SCC was split 4-4: four justices were in the majority, and there were two concurring dissents of three and one, respectively. With an equal number of justices on each side, by default, the SCC upheld the result at the Ontario Court of Appeal.
Points of Agreement
The SCC agreed that the Act is public welfare legislation with a remedial purpose (paras 8 and 79). The core of the Act is the “belt and braces” approach, which gives responsible parties overlapping liabilities to incentivize attention from more parties to the safety of worksites (paras 38 and 127). Seven justices agreed that Sudbury was an employer according to the Act, affirming the Ontario Court of Appeal’s reasons on this point and its application of Wyssen. Control is not mentioned or applicable in the definition. “Employer” is defined very broadly to include any employers of workers and any person contracting for the service of workers, which would capture owners through their hired constructors.
Unique to the Majority
The four justices in the majority disagree with those in the 3-justice dissent about whether control plays any role in limiting the duties at the worksite that employers are liable for (para 25). The majority state that any consideration of the extent of control belongs in the due diligence defence required of s. 66(3)(b) (para 41). They state that the broad definition of employer and the breadth of employer’s duties in the OHSA reinforce s. 25(1)(c)’s interpretation and suggests the scope of the duty should not be narrowed (para 48).
The fact that some employer duties are expressly narrowed reinforces the breadth of duties not expressly narrowed (para 34). The wide overlapping liabilities are a feature of the “belt and braces” approach, so limiting the scope of duties to maintain health and safety is at odds with the legislative intention (para 40). Nonetheless, the majority contends that the employer’s relative control affects the ultimate liability, but only in the due diligence defence (para 55). Delegation of authority and subsequent intentional reliance on hired experts can still demonstrate due diligence where the hiring process meets the standards of “reasonable steps” (paras 57-59). For example, if the constructor is properly screened, along with any attendant warning to the expert of hazards and monitoring.
The Popular Dissent
The 3-justice dissent’s main contention with the majority is that the overlapping “belt and braces” approach does not need to be so vast to be effective, and having no limits could even thwart the intended effect. When not specified in a regulation, control should limit liability to work related to what employer’s workers are engaged in or expected to be engaged in and not solely relevant for the due diligence defence. The distinct role of a constructor is to accept both complete authority and plenary oversight (para 99). Employers have overlapping responsibilities with constructors because employers assign workers to specific project aspects that they have some control over. The constructor has overlapping and overarching control over the whole project. This animates the “belt and braces” approach without casting the relevant provincial regulation so broad as to capture employers with no reasonable way to control or inspect compliance across major projects (para 120). Sudbury’s relationship to Interpaving was as an owner-constructor, not an employer.
The dissent states that defining the scope of employers’ duties without consideration of control can undermine the practicality and effectiveness of the “belt and braces” approach by confusing employers. If an employer fails to keep the worksite under their primary control safe as a ‘belt’ other employers with overlapping control might succeed as ‘braces.’ If an employer has no control or oversight, it cannot be an effective brace (para 130). Broadening this approach will just result in employers being confused over how they can be ‘braces’ in workplace areas where they have no control or presence (para 130). Moreover, narrowing the employers who are responsible will help workers know where to go for recourse: employers with control (paras 132-133). The dissent also highlights that, on the majority’s approach, absolute liability OHSA duties without a due diligence defence would attach to owners without control (para 102).
The majority and popular dissent’s interpretations of the legislation seem plausible but inconclusive based on a plain reading of the OHSA. The majority cites the “public welfare” purpose of the legislation, which carries significant weight in the decision. While public welfare is the broad purpose of the OHSA, the majority takes the “belt and braces” approach to its maximal conclusion, which is not necessarily the only reasonable interpretation. Both sides agreed that the “belt and braces” approach animates the legislation; it is not self-evident that the legislature intended to maximize it without a reasonable limit.
The dissent offers an excellent reason for why treating owners the same as constructors who have control is counterproductive. The owner behaves more like a client than an employer on any project, hiring a constructor to take full authority and manage the contract. The constructor is, therefore, neither an employee in form nor substance but a complete steward of the owner’s authority on the project. The authority and plenary oversight are two of their primary purposes. Even if the owner had full control and authority concurrently with the constructor, they do not necessarily have the expertise or experience to add meaning to the belt and braces of the operation. In that case, hiring a competent person with the authority and expertise to implement and abide by the relevant health and safety regulations is the only reasonable precaution they could make.
The practical consequence of the decision will be that owners must purchase more insurance. Moreover, the specific role of control in the due diligence defence needs to be clarified. You either have control over the parties on the worksite, or you do not. The existence of control will significantly impact what reasonable precautions were possible, rendering all reasonable precautions that the owner could take back to the decision to hire a constructor and whether the owner did that diligently. If that is ever the case, how can one take reasonable precautions except to abdicate their control diligently? Is that where the entire analysis will lie on due diligence if an owner surrenders control? Is that worth the cost of the Ministry to litigate when an owner evidently has no control?
The majority position is on the side of more parties responsible for safety, which is challenging to stand against. While that seems to align with the purpose of the OHSA, legislation is capable of more nuance than that, which is the case here. There is a high chance that the dissent is correct that making the owner liable without considering control will have no natural effect in expanding these remedial purposes because having no control in these circumstances boils down to being incapable of making a difference. The majority decision creates greater liability for little safety benefit. Owners will need to incur greater expenses to minimize the risk of catastrophic financial harm without appreciably increasing worksite safety.
The OHSA was drafted comprehensively to prevent employers from dodging their responsibilities. Still, the SCC was divided regarding whether owners without control over particular worksite operations were liable to the duties of employers with control. A split court indicates that the legislation needs to be clarified. Unless the legislature clarifies the legislation, owners and their counsel must carefully examine and meet the full scope of employer duties in the OHSA.