Canadian Underwriter

Supreme Court mulls municipal liability in construction site death

December 13, 2021   by Greg Meckbach

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The Supreme Court of Canada will consider the question of what risk a municipality has when someone is killed or injured on a construction site when a contractor is involved.

Specifically, the top court announced Dec. 9 it will hear an appeal – from the City of Greater Sudbury – of a Court of appeal for Ontario ruling released April 23, 2021.

In 2016, a woman died while attempting to cross a Sudbury street that was under construction. Both the City of Greater Sudbury and were charged under provincial health and safety legislation. The contractor pled guilty but the city did not.

In 2019, the city was acquitted by the Ontario Court of Justice. Key to that ruling – Ontario (Labour) v. Sudbury (City) – was the finding that the City was not an employer in this case. The Occupational Health and Safety Act defines employer 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.”

The crown appealed. Later in 2019, the Ontario Superior Court of Justice upheld the original ruling. But this was overturned in 2021 by the Court of Appeal for Ontario. The city applied for leave to appeal to the Supreme Court of Canada.

No hearing date has been set.

In the Ontario Occupational Health and Safety Act, there are two types of employers, the Court of Appeal for Ontario said in the Sudbury case, citing R. v. Wyssen, release by the Court of Appeal for Ontario in  1992. Not only does it cover someone who employs workers but also someone who contracts for the services of workers.”

“A person or entity might be subject to duties as an owner as well as an employer and a constructor,” the Court of Appeal for Ontario wrote in its unanimous ruling.

“In this case, there is no doubt that City inspectors – employees employed directly by the City – were present on the project site and performed a variety of tasks. Among other things, they monitored the job site for quality control purposes and monitored the progress of the work to confirm that the City was receiving the work it was paying for.”

In the case involving the 2016 tragedy in Sudbury, the trial judge found that there was no signaller in assisting the grader operator, nor was a fence erected between the public way and the worksite. The judge further ruled that the City was neither an employer nor a constructor but that in any event, the City had a due diligence defence to the charges.

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