

COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Labour) v. Sudbury (City), 2019 ONCA 854

DATE: 20191028

DOCKET: M50582

Brown J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen in
    Right of Ontario (Ministry of Labour)

Applicant

(Moving Party)

and

The Corporation of the
    City of Greater Sudbury

Respondent

(Responding Party)

David McCaskill, for the moving party

Ryan Conlin and Frank Portman, for the responding party

Heard: September 26, 2019

REASONS FOR DECISION

[1]

Although the threshold for granting leave to appeal pursuant to s. 131
    of the
Provincial Offences Act
, R.S.O. 1990, c. P.33
    (
POA
),
is very high, I am satisfied
    that this case is one where the resolution of a question of law alone may have
    an impact on the jurisprudence in a way that is of interest to the public at
    large:
Ontario (Labour) v. Enbridge Gas Distribution Inc.
, 2011 ONCA 13,
    382 D.L.R. (4th) 343, at para. 34.

[2]

The factual matrix in which the question of law arises involves a common
    type of construction project: a municipality enters into a contract for the
    repair and reconstruction of urban municipal roadways. In the present case, a
    piece of heavy equipment backed up without the presence of a signaller, and a
    human life was lost. The legal issue then arises about what, if any, liability
    the municipality may bear for that occurrence under the
Occupational Health
    and Safety Act
, R.S.O. 1990, c. O.1 (the
OHSA
).

[3]

The respondent, The Corporation of the City of Greater Sudbury
    (Sudbury), was charged with offences under the
OHSA
alleging the
    contravention of statutory duties as a constructor and employer in respect
    of the road repair project. Sudbury was acquitted on all counts. The Crowns
    appeal to the Superior Court of Justice was dismissed: 2019 ONSC 3285, 88
    M.P.L.R. (5th) 158.

[4]

The moving party, Her Majesty the Queen in Right of Ontario (Ministry
    of Labour) (the Crown), seeks leave to appeal the acquittals on the basis
    that both courts below erred in their interpretation or application of the
OHSA

s

definitions of constructor and employer, improperly importing an
    element regarding the degree of the municipalitys control over the project
    into the definition of employer and improperly applying the control element in
    the definition of constructor.

[5]

The Crown concedes, at para. 25 of its factum, that control is an
    essential element of the definition of constructor. Consequently, its
    complaint that the courts below erred in their assessment of the degree of
    control exercised by Sudbury over the project engages a question of mixed fact
    and law, which is not appealable under
POA
s. 131.

[6]

However, I am satisfied that a question of law alone is engaged
    by the Crowns contention that the courts below erred by importing into the
    definition of employer an element regarding the degree of control that Sudbury
    exercised over the project. The interpretation of employer in the
OHSA
adopted by the courts below may, at the end of the
    day, be free from legal error. However, a large number of municipal
    infrastructure projects are undertaken in this province each year in which the
    municipality contracts the work out to a third party. Whether a municipality
    may or may not fall within the definition of employer in respect of such
    projects by reason of the degree of control it exercises over the project
    engages a question of law alone of interest to the public at large. As such,
    special grounds for leave to appeal exist within the meaning of
POA

s. 131.

[7]

I recognize that the trial judge also examined Sudburys liability on
    the assumption that it was an employer and concluded that Sudbury had
    established a defence of due diligence. The Crown contends that the trial judge
    erred at law by considering general, not specific, acts of due diligence. The Crown
    observes that the appeal judge did not address the issue of due diligence in
    his appeal reasons. This court has recognized that whether the acts of due
    diligence are sufficiently specific to support a due diligence defence at law
    may constitute a question of law alone sufficient to support granting leave to
    appeal under
POA
s. 131:
Her Majesty the Queen v. Petro-Canada
(January 30, 2001), Toronto, M26383 (Ont. C.A.). In the present case, the Crowns
    ground of appeal in respect of the due diligence defence is arguable.
    Notwithstanding that Sudbury contends the issue largely turns on facts, not
    law, I do not regard the trial judges findings on the due diligence defence as
    an obstacle to granting leave to appeal on the legal question of the definition
    of employer, given the interest to the public at large of that legal issue.

[8]

As a result, I grant the Crown leave to appeal from the
    acquittals of Sudbury on the counts that alleged the municipality had breached
    its duties under the
OHSA
as an employer.

David Brown J.A.


