Date: November 2023
As most across the construction industry are aware by now, a week ago the Supreme Court of Canada released its decision in R. v. Greater Sudbury (City). In short, the SCC upheld the decision of the Court of Appeal and found (among other things) that:
(1) in order to prove that the owner is an employer pursuant to s. 1(1) of the Occupational Health and Safety Act, the Ministry is not required to prove that the owner had control over the workplace or the workers; and,
(2) if the Ministry is able to prove its case against the owner (beyond a reasonable doubt), the owner must prove (on a balance of probabilities) that it should avoid liability because it exercised due diligence.
Upon my first review of this short novel…I mean Supreme Court decision…I have a couple first thoughts.
First, while I do agree that this decision will have implications for construction projects across the province, I think that the legislative analysis by Justice Martin was spot on. As we all know, “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”
At paragraph 17 of the decision, Justice Martin rightfully stated the following:
“This Court must 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 is a legislative and not a judicial function.””
With that being said, I agree with my colleagues across the construction bar, that this decision certainly requires some discussion on whether there needs to be some sort of legislative amendment to the Occupational Health and Safety Act.
Second, after reading this decision I was curious to find some stats with respect to OHSA complaints and convictions to get a better sense of the impact this SCC decision could have on the industry.
In 2017-2018 (the latest stats I could find), there were 16,533 health and safety complaints received by the Ministry which led to a total of 907 OHSA convictions. These numbers relative to the size of the construction industry in Ontario, coupled with the likelihood that the capacity of the Ministry to increase prosecution efforts is not substantial, may help to reduce the concern amongst the industry caused by this decision.
In any event, only time will tell.
A link to the stats OHSA stats can be found here. Click here for a link to the decision.