A recent decision from the Supreme Court of Canada involving a tragic incident has provided clarity on what the courts will assess when determining if a municipality is an “employer” under Ontario’s Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “OHSA”).
Background
In early 2015, the City of Greater Sudbury (the “City”) entered into an agreement with Interpaving Limited (“Interpaving”) to carry out certain construction works in downtown Sudbury. Under the contract, Interpaving was to assume control over the whole of the project and act as the “constructor” pursuant to the OHSA.
Construction began in mid-2015. Quality control inspectors employed by the City were present at the construction site from time to time and, on at least one occasion, raised safety concerns to Interpaving. Later on during construction, a pedestrian crossing an intersection in the construction zone was struck and killed by a road grader being operated by an Interpaving employee.
As a result of the tragic incident, both the City and Interpaving were charged by the Ministry of Labour with violations of the OHSA regulations and provisions. The City was charged on the basis that it was an “employer” for the purposes of the OHSA. While the City conceded that it sent inspectors to the construction site, it argued that, in this case, it was not an “employer” with the duty to ensure that measures and procedures of the OHSA regulations were carried out.
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