On November 10, 2023, the Supreme Court of Canada issued a split decision in R v. Greater Sudbury (City) (“Sudbury”). This precedent-setting decision significantly expands the health and safety obligations of an “Owner” under Ontario’s Occupational Health and Safety Act (“OHSA”).
As a result of the Supreme Court’s decision, engaging a General Contractor (“GC”) as a “constructor” at a construction project, and allowing the GC to assume full operational “control” over the project, may no longer insulate an owner from liability under the OHSA. Owners are at greater risk for health and safety on their projects, and need to carefully reconsider their contractual arrangements with GCs and construction managers.
On December 8, 2023, Sudbury filed a Notice of Motion for a re-hearing of the appeal on the basis that the appeal was heard by a full panel of the Court, but Justice Brown did not participate in the Decision of the Court. Moreover, the Court’s decision was split on the result of the Appeal, with Wagner C.J. and Kasirer and Jamal JJ. Concurring with the reason of Martin J., joint dissenting reasons by Rowe J. and O’Bonasawin JJ., with Karakatsanis J. concurring, and Cote J. giving additional reasons in a separate dissent.
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