R v Greater Sudbury (City)

2023 SCC 28

Supreme Court of Canada

Wagner CJ & SCJ; Karakatsanis, Cote, Brown, Rowe, Martin, Kasirer, Jamal & O’Bonsawin, SCJJ

November 10, 2023

Reported by Faith Wanjiku and Betty Nkirote

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Employment Law-workplace injuries-duties of employers-where the appellant contracted a constructor to repair a downtown water main-where in the course of the repairs a pedestrian was struck and killed-where the appellant was charged under section 25 (1) (c) of the Occupational Health and Safety Act for breaching duties of employers-whether the appellant by contracting Interpaving Limited to undertake the construction project automatically became the employer of workers hired by Interpaving Limited-Occupational Health and Safety Act, 1990 section 25 (1) (c).

Brief facts

The appellant contracted with Interpaving Limited to act as a constructor to repair a downtown water main. During the repairs, an Interpaving employee struck and killed a pedestrian when driving a road in reverse, through an intersection. The respondent charged the appellant under section 25(1)(c) of Ontario’s Occupational Health and Safety Act (the Act) for failing to ensure that certain safety requirements of the accompanying regulation, Construction Projects (Regulation), had been met.

The appellant conceded that it was the owner of the construction project and acknowledged that it sent its quality control inspectors to the project site to oversee Interpaving’s contract compliance. However, the appellant denied being an employer since it lacked control over the repair work and that it had delegated control to Interpaving.

The trial court found that the appellant was not an employer under section 1 (1) of the Act since Interpaving and not the appellant had direct control over the workers at the construction site. Further, the trial court held that even if the appellant was the employer and breached its obligations under the Act, it had acted with due diligence.

On appeal to the Provincial Offences Appeal Court, the court upheld the decision of the trial court but failed to address the question of the defence of due diligence. Consequently, the respondent appealed to the Court of Appeal. While setting aside the decision of the Provincial Offences Appeal Court, the Court of Appeal found the appellant liable as an employer under section 25 (1) © of the Act and remitted the issue of the appellant’s defence of due diligence to the Provincial Offences Appeal Court for determination. Aggrieved by the decision of the Court of Appeal, the appellant brought the instant appeal to the Supreme Court.

Issue

  1. Whether a person that contracted contractors for a project was considered the employer of the workers hired by the contractor.

Relevant provisions of the law

Occupational Health and Safety Act, 1990

Section 25-Duties of employers

(1) An employer shall ensure that,

(c) the measures and procedures prescribed are carried out in the workplace;

Section 66-Penalties

(3) On a prosecution for a failure to comply with, clause 25(1)(b), (c) or (d); or it shall be a defence for the accused to prove that every precaution reasonable in the circumstances was taken.

Held (Martin, SCJ (Wagner CJ and Kasirer and Jamal, SCJJ concurring)

  1. Section 66 (1) (a) of the Occupational Health and Safety Act, 1990 (the Act) made it an offence for a workplace actor to breach one of the Act’s obligation including section 25 (1) (c) of the Act which was a strict liability offence. As such, when section 25 of the Act was the subject of the charge, the respondent only needed to prove actus reus beyond a reasonable doubt to ground a conviction. The respondent did not need to prove mens rea. To prove the actus reus, the respondent ought to prove that a workplace participant was an employer under section 1 (1) of the Act and that there was a breach because the employer did not ensure that the prescribed measures and procedures were carried out in the workplace.
  2. It was clear from the text of the definition of employer that control was not an element that the respondent ought to prove to establish that an accused was subject to the duties of an employer. First, the definition contained no reference to control. It was simply not there when it could have been, if that was the intention of the legislature. The court ought to give effect to what the legislature included in the definition of employer. To conjecture and then grant priority to what the legislature chose not to include, by adding an additional element into the definition, would be tantamount to amending the Act, which was a legislative and not a judicial function.
  3. It was also significant that while the legislature did not include control in the definition of employer, it did in the definition of a constructor. In section 1 (1) of the Act a constructor was defined as a person who undertook a project for an owner. The absence of a control requirement for employers thus reflected an intentional legislative choice that ought to be respected. It followed that from the text, context and purpose of section 1 (1) of the Act the appellant was an employer under both branches of the Act’s definition. It was an employer of the inspectors, whom it employed directly and dispatched to the construction project. Under the second branch, the appellant was an employer of Interpaving, with whom it contracted to undertake the construction project.
  4. Since the definition of employer encompassed employer-independent contractor relationship, an owner who contracted with a constructor was an employer under section 1 (1) of the Act. The text of the employer definition captured a person who contracted for the services of workers, and worker was defined as including a person who performed work or supplied services for monetary compensation. That encompassed constructors who performed work and supplied services for monetary compensation. The reference to contracting for the services of workers in the employer definition clearly captured contracting with constructors.
  5. The language that the legislature chose to use in section 25(1) (c) of the Act — namely, the use of the word ensure — also spoke to and supported the broad nature of that duty. That duty put an employer virtually in the position of an insurer who ought to make certain that the prescribed regulations for safety in the workplace had been complied with before work was undertaken by either employees or independent contractors. That sweeping undeniably strict and non-delegable duty could not be evaded by contracting out performance of the work to independent contractors.
  6. The strict nature of the employers’ duty under section 25 (1) (c) of the Act led the Court of Appeal to reject reading a mens rea requirement into section 25(1) (c) of the Act. Clear language, like the words wilfully, with intent, knowingly or intentionally, would be necessary to view section 25(1) (c) of the Act as a mens rea offence. The legislature instead used the word ensure which suggested that it intended to impose a strict duty on the employer to make certain that the prescribed safety standards were complied with at all material times. For the same reasons that reading in a mens rea element would be inappropriate, a control requirement could not be read into section 25(1) (c) of the Act.
  7. The existence of the due diligence defence in section 66(3)(b) of the Act was relevant context because it meant that employers who breached section 25(1)(c) of the Act would not be subject to penalties under the Act if they could show they took all reasonable steps to avoid the breach. Section 66(3)(b) of the Act therefore functioned as a safety valve, in which the presence of control could be a factor in assessing due diligence. As a result, there was no justification for narrowing the offence under section 25(1)(c) of the Act by overlaying a control requirement. Concerns about fairness were answered by the availability and content of that defence.
  8. As an employer of the inspectors and of Interpaving, the appellant was required by section 25(1)(c) of the Act to ensure that the measures and procedures prescribed were carried out in the workplace. That included ensuring compliance with sections 65 and 104(3) of the Regulations of the Act. On the date of the pedestrian’s death, the measures required by those provisions — a fence between the construction work and the public way, and signallers — were not carried out in the workplace. Thus, the appellant, as employer, committed the offence under section 25(1) (c) of the Act and its degree of control over the workplace or the workers was not relevant to that finding.
  9. Considering control at the due diligence stage respected the text, context and purpose of the Act and best upheld its purpose of promoting workplace safety. Though a person convicted under section 25(1)(c) of the Act could be liable to fines and/or imprisonment, a breach of section 25(1) (c) of the Act was not a criminal offence, but rather a strict liability regulatory offence. Its goal was not to condemn and punish past, inherently wrongful conduct, but to prevent future harm through the enforcement of minimum standards of conduct and care. The legislature’s choice to impose liability upon an employer, even absent a connection to or control over an activity, was driven not by a desire to express opprobrium of inherently blameworthy conduct but by a desire to modify behavior and reduce the risk of workplace injury. The nature and purpose of strict liability offences meant that stigma would not attach to employers who were found to have breached section 25(1)(c) of the Act. Rather, shifting the burden to the employer to establish a due diligence defence incentivized employers to take all steps within their control to achieve workplace safety and prevent future harm so that they could avail themselves of the defence where harm occurred.
  10. A court ought to consider three questions where an owner who contracted for the services of a constructor on a construction project was prosecuted for a breach of section 25(1) (c) of the Act namely:a)       Had the respondent proven beyond a reasonable doubt that the Act applied to the accused because the accused was an employer under section 1(1) of the Act? An owner was an employer if it:(i) employed workers at a workplace where an alleged breach of section 25(1)© of the Act occurred; or (ii) contracted for the services of a worker at that workplace (including for the services of a constructor. The respondent was not required to prove that the owner had control over the workplace or the workers there. b)      Had the respondent proven beyond a reasonable doubt that the accused breached section 25(1)(c) of the Act? There was a breach of section 25(1) (c) of the Act if the safety measures prescribed by the Regulations were not carried out in the workplace to which the owner/employer was connected by a contractual relationship with employees or an independent contractor. The respondent was not required to prove that the owner had control over the workplace or the workers there. c)       had the accused proven on a balance of probabilities that it should avoid liability because it exercised due diligence under section 66(3)(b) of the Act?
Relevant considerations might include, but were not limited to:
  1. the accused degree of control over the workplace or the workers there;
  2. whether the accused delegated control to the constructor in an effort to overcome its own lack of skill, knowledge or expertise to complete the project in compliance with the Regulation;
  3. whether the accused took steps to evaluate the constructor’s ability to ensure compliance with the Regulation before deciding to contract for its services; and
  4. whether the accused effectively monitored and supervised the constructor’s work on the project to ensure that the prescriptions in the Regulation were carried out in the workplace.

Per Karakatsanis, Rowe and O’Bonsawin, SCJJ (dissenting opinion)

  1. The definition of employer in section 1(1) of the Act covered two broad relationships. On the first branch, a person satisfied the definition of employer where they employed one or more workers. On the second branch, a person was an employer where they contracted for the services of one or more workers.
  2. The fact that a party was an employer did not mean that they were an employer to all workers at a workplace or project, which could affect the scope of their responsibilities. The court agreed with the Court of Appeal that the appellant was the employer of its inspectors under the first branch of the definition of employer. However, the appellant was not the employer of the workers hired or contracted for by Interpaving under the second branch of the employer definition. The appellant’s relationship with Interpaving reflected an owner-constructor relationship, not an employer-worker relationship.
  3. The Act was designed to provide effective protection for the health and safety of workers. That objective was furthered by requiring employers to be focused on fulfilling regulatory measures related to work which they controlled. Conversely, it was frustrated when limitless duties were imposed that ultimately obscured the areas in which an employer could make a practical difference. If every employer was rendered equally responsible for everything, it became more difficult for workers and other workplace parties to single out particular employers who ought to take the initiative, or to seek a uniform response among employers. That undermined the effectiveness of the internal responsibility system, which was at the core of the Act’s reform. Such an outcome did not promote worker safety, it jeopardized it. A practical understanding of how the Regulation connected to section 25(1)© of the Act best protected the purpose of the scheme and recognized how the scheme operated on the ground.
  4. It was true that legislature imposed strict liability offences to increase administrative efficiency. However, the fact that the respondent was spared from proving mens rea did not mean that it was able to charge anyone with anything in the Regulation. Determining whether a measure in the Regulation applied to an employer under the court’s interpretation was not an onerous task and therefore had little effect on the efficiency of the respondent’s work. To determine which measures apply to which employers, courts merely needed to ask, the work that an employer was responsible for undertaking on the construction project. In that sense, it involved an inquiry into the allocation of tasks on the project and the work actually performed by the employer’s workers. That was a basic question that ought to arise in the respondent’s investigation of an accident or incident. It ought to inform who the Ministry charged. Taken together, the court’s interpretation promoted the purposes of the scheme while protecting the integrity of its structure.
  5. On the question of prosecutorial discretion, the respondent’s approach undermined the rule of law. It effectively gave prosecutors unbounded discretion to define the proper scope of each employer’s duties by deciding who to charge, rendering the ultimate delineation of duties in the Act unpredictable and uneven from the accused perspective. That could not be what the legislature intended when it sought to enact strict liability offences for administrative efficiency. It crafted a careful scheme to create coordinated working relationships among employers under the oversight of the constructor. It was inconceivable that the legislature would intend for the true scope of section 25(1) (c) of the Act to be determined via prosecutorial discretion. The respondent’s reliance on a promise that prosecutors would not charge employers for breaches of regulatory measures over which they had no control emphasized the absurdity of its own interpretation.
  6. There were multiple flaws with adopting an approach that pushed most of the analysis concerning an employer’s responsibility to the due diligence stage. First, from a methodological perspective, the offence and the defence ought not to be conflicted. The existence of section 66(3) of the Act confirmed the nature of certain duties. Sections 23(1), 25(1)(b), (c) or (d) and 27(1) of the Act involved strict liability, rather than absolute liability. However, section 66(3) of the Act did not determine the applicability of those duties to a party, nor their content. Those were distinct inquiries, and courts ought not to abdicate the responsibility of arriving at a reasonable interpretation of a duty merely because a defence existed or because doing so would improve administrative efficiency for the respondent.
  7. Second, the contextual analysis undertaken in court’s reasons demonstrated that the respondent’s interpretation was inconsistent with other statutory provisions and confused the roles of employer and constructor. The objective of statutory interpretation ought to be to interpret statutory provisions to harmonize the components of legislation inasmuch as was possible, in order to minimize internal inconsistency. The respondent’s interpretation did the opposite, it undermined the coherence of the overall scheme, while asking the accused to bear the burden of repairing it at the due diligence stage. Pointing to the existence of section 66(3) of the Act as a safety valve did not excuse the damage inflicted on the scheme by an unbridled interpretation of section 25(1)© of the Act and the Regulation. Even if pushing the analysis to the due diligence stage was a plausible interpretation, courts ought to favour an approach that reflected the structure and consistency of the legislative scheme.
  8. Third, shifting much of the analysis on the contents of the duty and the nature of the employer’s work to the due diligence stage had superficial appeal in its apparent simplicity. On that approach, every employer was liable for fulfilling all of the same measures in the Regulation, and the practical problems with such an approach were conveniently hidden from view by pushing them to the due diligence stage. However, that increased uncertainty in practice and ignored the reality of how the scheme operated on the ground. If most of the employer’s obligations were outside of their control, they had no ability to even know whether the measures were being complied with or what they could be charged with at any moment. In contrast, requiring that a measure related to an employer’s work provided employers with a greater understanding of their responsibilities and encouraged them to take initiative to protect workers.
  9. Fourth, it ought not be forgotten that the Act was a penal legislation. Those convicted of an offence were subject to fines of up to $500,000 and imprisonment for up to one year. Those were serious punishments for the caterer, the homeowner, or the small business owner on a construction project. It was inconceivable that the legislature intended to allow prosecutors to haul any employer on a massive project to court and force them to demonstrate the measure was completely irrelevant to their work in order to save themselves from prison or financial ruin. The interpretation proposed in those reasons recognized that absurdity and offered a grounded approach that preserved the legislature’s intent.
  10. Fifth, the defence at section 66(3) of the Act was illusory for a variety of parties: rather than pay hefty legal fees and seek to mount a successful due diligence defence, small businesses, sole proprietors, contractors, and homeowners could resign themselves to pleading guilty. Insofar as the existence of a due diligence defence was a safety valve underpinning the respondent’s broad interpretation, its practical unavailability for more vulnerable parties ought to be acknowledged since access to justice remained out of reach for many Canadians. The availability and content of the due diligence defence did not serve as an adequate safety valve for an employer who had been charged with failing to comply with measures which were unrelated to their work and ought to never have applied to them in the first place.
  11. Section 25(1) (c) of the Act required an employer to ensure compliance with all applicable regulatory measures. Where the Regulation expressly stated to whom its measures applied, there would be no question as to whether they fell within the employer’s duty under section 25(1)© of the Act. Where however, a particular measure was silent concerning to whom it applied, the measure applied when it related to work that the employer controlled and performed through their workers. That relationship was established when the employer had authority over the performance of a task, usually because it was the portion of the work within the larger project that, whether alone or with other parties, they had been entrusted with performing through the workers they had employed or contracted for.
  12. At the hearing, the appellant effectively conceded that it was the employer of its inspectors. The appellant hired quality control inspectors and owed duties as the employer of those workers under the Act. However, that did not mean that the appellant was the employer of all workers on the project. By contracting with a constructor, it did not become the employer of the workers that the constructor retained. As explained previously, the owner-constructor contract reflected a distinct relationship contemplated in the Act that did not generally fall within the second branch of the employer definition in section 1(1) of the Act. Consequently, the appellant was only the employer of its quality control inspectors.

Per Cote, SCJ (dissenting opinion)

  1. Through the Act and Regulation, the legislature had made it clear that construction projects were distinct from other regulated workplaces. On a construction project, while each employer was responsible for the health and safety of its own workers, the constructor was responsible for health and safety across the project.
  2. The Act anticipated that an owner who had contracted with a third-party constructor would have a quality control role on the project. Properly interpreted, the Act still contemplated a significant degree of overlap. For example, the health and safety obligations of individual employers with respect to their own workers were shared with the constructor. But the structure of the Act made it clear that constructors, not employers, were responsible for the health and safety of all workers on a construction project.
  3. The appellant’s involvement in the project was limited to quality control. It was not responsible for the completion of any construction work. It did not direct or supervise any construction workers. Rather, it sent inspectors to ensure compliance with the terms of its contract, and to protect public funds, before making progress payments. That was not only commendable but also standard industry practice. The trial court’s conclusions on the appellant’s lack of control at the project were findings of fact that deserved deference.
  4. It was entirely conceivable that a different employer at the project could share liability with Interpaving, the constructor, for breaches of sections 65 and/or 104(3) of the Regulation. For example, if Interpaving had hired a paving company to do the grading work, that company would be an employer on the project and strictly liable for any failure to ensure the assistance of a signaller. This liability would be shared with Interpaving, which would remain responsible (as constructor) for health and safety across the project. The Act was designed to accommodate delegation and overlapping responsibilities of that nature.
  5. The role of a municipal project owner who hired quality control inspectors was necessarily different from that of the employer(s) involved in the actual construction work. The appellant undoubtedly had health and safety obligations vis-à-vis its own employees. For example, if it had engaged five or more inspectors, it would have been required to appoint a supervisor for them under section 15(1) of the Regulation. But the provisions of the Regulation at issue in the instant case established safety requirements — the need for fencing to be erected between construction work and the public and for a signaller to assist operators of heavy machinery — that could apply only to the construction project parties who undertook the construction work itself. The trial court made it clear that the appellant was not involved in that work and had no control over it. It correctly held that the appellant was therefore not an employer on the construction site merely by virtue of employing quality control inspectors.

Appeal dismissed on Equal division; the issue of the appellant’s defence of due diligence was remitted to the Provincial Offences Appeal Court for determination.

Relevance to Kenyan jurisprudence

In Kenya, the statutory obligation by an employer to ensure safety at the workplace is set out in Occupational Safety and Health Act, Cap 514 Laws of Kenya (Occupational Safety and Health Act). Section 3 of the Occupational Safety and Health Act states as follows:

“(1) This Act shall apply to all workplaces where any person is at work, whether temporarily or permanently. (2) The purpose of this Act is to— (a) secure the safety, health and welfare of persons at work; and (b)protect persons other than persons at work against risks to safety and health arising out of, or in connection with, the activities of persons at work.” “( Further, section 6 of the Occupational Safety and Health Act makes it clear that an employer’s duty of providing a safe working environment is not restricted only to its area of control. It states in this regard thus: “(1) Every occupier shall ensure the safety, health and welfare at work of all persons working in his workplace. (2)Without prejudice to the generality of an occupier’s duty under subsection (1), the duty of the occupier includes— (a) the provision and maintenance of plant and systems and procedures of work that are safe and without risks to health; (b) arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) the provision of such information, instruction, training and supervision as is necessary to ensure the safety and health at work of every person employed; (d) the maintenance of any workplace under the occupier’s control, in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks to health; (e) the provision and maintenance of a working environment for every person employed that is, safe, without risks to health, and adequate as regards facilities and arrangements for the employees welfare at work; (f) informing all persons employed of— (i) any risks from new technologies; and (ii) imminent danger; and (g) ensuring that every person employed participates in the application and review of safety and health measures. Thus, from the foregoing provisions of the Occupational Safety and Health Act, it is clear that the law places injuries sustained at workplace under strict liability offences since the employer is required to ensure a safe working environment for its employees. The Court of Appeal in Purity Wambui Murithii vs Highlands Mineral Water Co. Ltd, [2015] eKLR stated as follows: Section 6(1) of the Occupational Safety and Health Act provides: “Every occupier (employer) shall ensure the safety, health and welfare at work of all persons working in his workplace.” It, therefore, follows that as a general rule the employer is liable for any injury or loss that occurs to his employees while at the workplace as a result of the employer’s failure to ensure their safety. Does this mean that the employer would always be liable in all circumstances regardless of what caused the accident in question" We do not think so. We say so because where an accident happens due to the employees own negligence it would be unfair to hold the employer liable. Further Section 13(1) (a) of the Occupational Safety and Health Act provides: “13(1) Every employee shall, while at the workplace – (a)ensure his own safety and health and that of other persons who may be affected by his acts or omissions at the workplace. Therefore, the employee is also required to take reasonable precaution to ensure his/her safety at the workplace while performing his/her duties.” However, for an employer to be found liable for workplace injuries, one has to establish the existence of employer/employee relationship and demonstrate that the injury was sustained while performing work within the control of the employer. In Peter Omonya v Trnasmail International Limited [2017] eKLR the court held in this regard thus: It is trite law that an employee under a contract of service is evidenced by payment of salary or wages, control by the employer and provision of working tools and workplace by the employer. In this case, he claimant was paid salary by Mr. Farah Dhayou who also provided a truck KBF 267H and who exercised control over him by giving him instructions. He cannot therefore not lose that status by the mere fact that the employer failed to remit NSSF and NHIF contribution for him. Likewise he could not become the respondent’s employee merely because she had agreed to remit NHIF and NSSF contributions for him on request by his employer. In the upshot, it is my holding that the parties herein were not related as employer and employee when the claimant was injured on 7/6/2017 or at all. Consequently, this case is relevant to Kenyan jurisprudence because it expands Kenyan jurisprudence on the duties of an employer to ensure a safe workplace for its employees.