



COURT
    OF APPEAL FOR ONTARIO

CITATION: Ontario
    (Labour) v. Sudbury (City), 2021 ONCA 252

DATE: 20210423

DOCKET: C67701

Fairburn A.C.J.O., Watt and
    Huscroft JJ.A.

BETWEEN

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

Appellant

and

Corporation
    of the City of Greater Sudbury

Respondent

David McCaskill, for the appellant

Ryan J. Conlin and Amanda D. Boyce, for
    the respondent

Chetan Muram and Kevin Simms, for the
    intervener Workers Health and Safety Legal Clinic

Heard: January 26, 2021 by video conference

On appeal from the judgment of Justice
    John S. Poupore of the Superior Court of Justice, dated June 6, 2019, with
    reasons reported at 2019 ONSC 3285, 88 M.P.L.R. (5th) 158, dismissing an appeal
    from the acquittals entered on August 31, 2018, by Justice Karen L. Lische of
    the Ontario Court of Justice.

REASONS FOR DECISION


OVERVIEW

[1]

A woman died after she was struck by a road
    grader performing repairs at an intersection in downtown Sudbury. The grader
    driver was employed by Interpaving Limited, a company the respondent, the City
    of Sudbury, had contracted to complete the road repairs. The City employed
    inspectors at the project site, among other things overseeing Interpavings
    contract compliance.

[2]

Interpaving and the City were charged with violations
    of
Construction Projects
, O. Reg. 213/91 (the Regulation), contrary
    to s. 25(1)(c) of the
Occupational Health and Safety Act
, R.S.O. 1990,
    c. O.1

(
OHSA
 or the Act). The City was charged on the basis that it was both
    a constructor and an employer within the meaning of the Act.
[1]


[3]

Interpaving was found guilty but the City was
    acquitted in separate proceedings. The trial judge in the Citys case found
    that there was no signaller in assisting the grader operator, nor was a fence
    erected between the public way and the worksite, as required by the Regulation.
    However, the trial judge concluded that the City was neither an employer nor a
    constructor and so owed no duties under the Act. The trial judge went on to
    find that, in any event, the City had a due diligence defence to the charges.

[4]

The Crowns appeal was dismissed. The appeal
    judge upheld the trial judges finding that the City was neither an employer nor
    a constructor and did not consider whether the City would have had a due
    diligence defence.

[5]

The Crown was granted leave to appeal to this
    court to determine whether the appeal judge erred in concluding that the City
    was not an employer under the Act. The Citys possible status as a constructor
    was an issue of mixed fact and law and so not subject to appeal under s. 131 of
    the
Provincial Offences
    Act
, R.S.O. 1990, c. P.33 (
POA
).

[6]

We conclude that the City was an employer within
    the meaning of the Act and, as a result, was liable for violations of the Regulation
    found by the trial judge unless it could establish a due diligence defence. The
    appeal is allowed and the decision is remitted as set out below to hear the
    Crowns appeal of the trial judges due diligence finding.

DISCUSSION

Is the City an employer?

[7]

This is an appeal from the judgment of the
    appeal judge. The question for this court is whether the appeal judge erred in
    concluding that the City was not an employer for purposes of the Act.

[8]

At the outset, the Crown reminds the court that
    the
OHSA
is public welfare legislation, and as such should be read
    liberally and broadly in a manner consistent with its purpose. There is no
    doubt that this is so; this court has consistently instructed that the Act must
    be interpreted generously, rather than narrowly or technically, in order to
    allow it to achieve the purpose of protecting employees health and safety.
    See, most recently,
Ontario
    (Labour) v. Quinton Steel (Wellington) Limited
,
2017 ONCA 1006 at paras. 19-20, and the authorities
    cited.

[9]

Whether the City is an employer turns on the
    application of the definition of employer in s. 1(1) of the
OHSA
,
    which provides as follows:

employer
    means 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
; (employeur)

[10]

The definition embraces both employing and
    contracting for the services of workers, but this appeal can be resolved at the
    first branch of the definition. As this court explained in
R. v. Wyssen
,
    1992 CanLII 7598 (Ont. C.A.), at p. 7, [t]he definition of employer in the
    Act covers two relationships: firstly, that of a person who employs workers and
    secondly, that of one who contracts for the services of workers. A person who
    employs one or more workers is therefore an employer for the purposes of the
    Act and is responsible for ensuring compliance with the Act in the workplace.

[11]

The Act establishes overlapping responsibility
    for health and safety and contemplates the possibility of multiple employers in
    a workplace. In
Wyssen
, at p. 9, the court noted that the relevant enforcement provisions
    in the Act put employers virtually in the position of an insurer who must make
    certain that the prescribed regulations for safety in the work place have been
    complied with before work is undertaken by either employees or independent
    contractors.

[12]

Not only do the duties of the workplace parties
    overlap; one person or entity may also meet the definitions for several
    different workplace parties and therefore be required to assume the duties of
    each of those parties at the same time. For example, a person or entity might
    be subject to duties as an owner as well as an employer and a constructor.

[13]

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.

[14]

Plainly, the City employed one or more workers
    at the project site within the meaning of s. 1(1). It is therefore an employer
    for the purposes of the Act and, as
Wyssen
makes clear, that is
    sufficient to dispose of this appeal. The exemption in s. 1(3), which precludes
    an owner from becoming a constructor by engaging a person to oversee quality
    control, does not preclude owners from becoming employers.

[15]

Although Brown J.A. raised a broader question in
    granting leave to appeal to this court  whether control is a requirement in
    cases where a municipality has contracted work to a third party  it is not
    necessary to resolve this question in order to decide this appeal. The City
    employed one or more workers at the project site and so assumed
    responsibilities as an employer under the Act on this basis under the first
    branch of the employer definition. Whether a municipality that contracts work
    to a third party must exercise control over that third party or its workers to
    be an employer under the second branch of the definition raises a number of
    issues that were not sufficiently canvassed in the parties submissions. In our
    view, it would be improvident to decide these issues on the record before us.

[16]

Consequently
, nothing in
    this decision is to be taken as either an endorsement of the appeal judges
    analysis or a determination of whether or not control is an element of the
    definition of employer where a municipality contracts work to a third party.

Did the City exercise due diligence?

[17]

As noted above, the trial judges findings that
    the Regulation was breached by the failure to have a signaller in place to
    assist the grader operator and the failure to erect a fence between the public
    way and the worksite render the City liable as employer for breach of s.
    25(1)(c) of the Act, unless the City succeeds in establishing a due diligence
    defence.

[18]

The Crown argues that the trial courts test for
    due diligence  a matter not addressed by the appeal judge  was wrong in law.
    According to the Crown, the City was required to show that it took all
    reasonable steps to ensure that the
specific
safety violations were
    remedied; general acts directed at safety cannot satisfy the due diligence
    obligation. The Crown submits that, if this court concludes that the City was
    an employer, the necessary findings of fact were made by the trial judge to
    substitute convictions on counts 8 and 9 of the Information (failure to have a
    signaller and failure to erect a fence). In the alternative, the Crown requests
    that a new trial be ordered.

[19]

The City responds that it satisfied its due
    diligence obligations by exercising diligence and prudence in the tendering
    process that resulted in the contract with Interpaving. In the alternative, the
    City argues that it took other steps that were sufficiently specific to meet
    its due diligence obligations as an employer.

[20]

It must be emphasized that this court sits in
    appeal from the decision of the appeal judge, not the trial judge:
Ontario
    (Labour) v. Nugent
, 2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 22. The
    appeal judge made no decision on the due diligence question, but a new trial is
    neither necessary nor appropriate for that reason. The appropriate remedy is to
    remit the matter to the appeal court to hear the Citys appeal of the due
    diligence issue.

[21]

The courts ability to remit the matter flows
    from s.
134 of the
POA
, which incorporates
    ss. 121 and 125 with necessary modifications. In short, s. 121 sets out the
    powers of the first-level appeal court in allowing an appeal from an acquittal.
    Although s. 121 does not explicitly provide that the Court of Appeal may remit
    the matter to the appeal judge to consider an alternative argument, s. 134
    provides that the provision applies in the Court of Appeal with necessary
    modifications. Section 125 provides that, when exercising its power under s.
    121, the court may make any order that justice requires. These provisions
    authorize the court to remit the matter to the appeal court: see e.g.,
R. v. Francis
(1996), 92 O.A.C. 308 (C.A.);
R. v. Thorne
, [1997] O.J. No. 1036 (C.A.);
Ottawa (City) v. Spirak
, 2008 ONCA 299;
Ontario (Ministry of Labour) v. Modern
    Niagara Toronto Inc.
, 2008 ONCA 590, 297 D.L.R.
    (4th) 156;
R. v. Courtice
    Auto Wreckers Limited
, 2014 ONCA 189, 308
    C.C.C. (3d) 571; and
R.
    v. Maxwell
, 2007 ONCA 834.

CONCLUSION

[22]

The appeal is allowed. The decision of the
    appeal court judge is set aside.

[23]

The Crown fairly concedes that the trial judge
    does not appear to have made the necessary factual findings to determine guilt
    on count 10 of the Information and that this charge was somewhat peripheral to
    the event in question. Accordingly, the matter is remitted to the appeal court
    for a hearing before a different judge to consider the Crowns appeal of the
    Citys due diligence defence with respect to counts 8 and 9 of the Information.

Fairburn
    A.C.J.O.

David Watt J.A.

Grant Huscroft
    J.A.





[1]

The City and Interpaving were both charged as employers
    pursuant to s. 25(1)(c) of the Act. The City was also charged as a
    constructor pursuant to s. 23(1)(a) and (b), but Interpaving was not.


