In the wake of the Supreme Court of Canada’s decision in R v Greater Sudbury (City), the construction industry received a clear message: project owners can be considered “employers” under Ontario’s Occupational Health and Safety Act (OHSA)—and can therefore be held liable when safety incidents occur on the job site. Alberta’s statutory regime uses similar definitions and the legal principles flowing from R v Greater Sudbury (City) apply equally in Alberta.
But the story did not end there. A recent follow-up decision from the Ontario Superior Court of Justice reinforces a crucial part of the equation: due diligence is the owner’s best—and sometimes only—defence.
The Case: A Fatality, a City, and a Contracted Constructor
The case stems from a tragic incident in 2016, when a pedestrian was struck and killed at an active construction site in Greater Sudbury. The City had hired Interpaving Limited to conduct watermain repairs, assigning them full responsibility as “constructor” under the OHSA. Despite this, the Ministry of Labour charged both Interpaving and the City. Interpaving pleaded guilty; the City did not.
At trial, the judge found that the City was not an “employer” under the OHSA. But that conclusion was overturned on appeal—culminating in a 2023 decision from the Supreme Court of Canada confirming that the City was an employer, based on its involvement in the project.
The final question was this: had the City done enough to avoid liability through due diligence?
Due Diligence: What It Takes
In a decision released earlier this year, the Ontario Superior Court of Justice answered: yes.
Why? Because the City took deliberate, concrete steps to ensure safety:
- They hired a competent contractor with whom they had extensive experience—over 40 projects in the preceding five years.
- They required contractor safety training, including NORCAT’s Greater Sudbury Utilities safety orientation.
- They delegated control appropriately, acknowledging their own lack of internal resources or expertise to act as constructor.
- They monitored and raised safety concerns, such as when traffic issues arose, while leaving implementation to the contractor.
Importantly, the Court emphasized that while the City had the authority to intervene, it did not exercise operational control—a key distinction that protected it from being deemed the “constructor.”
What This Means for Owners
This case is a critical reminder: project owners do not need to be wearing hard hats to be held responsible for safety. If you’re involved in construction projects—even if you have hired a general contractor—you may still be considered an “employer” under the OHSA.
That status carries serious legal obligations. But it also opens the door to a full defence—if you can demonstrate due diligence.
How Owners Can Protect Themselves
To mitigate risk and meet due diligence standards, owners should:
- Vet contractors thoroughly – Look at past safety performance, qualifications, and capacity to manage regulatory compliance.
- Clearly allocate responsibilities in contracts – Especially the role of “constructor” and who will implement safety measures.
- Monitor—not micromanage – Develop systems to receive safety complaints, attend progress meetings, and raise concerns without stepping into day-to-day supervision.
- Require safety training and certifications – Make sure your contractors’ personnel meet safety awareness requirements for your projects.
- Document everything – Records of meetings, safety communications, and inspections matter when defending against liability.
Final Word
Construction is complex, and legal exposure is part of the landscape. But with the right systems, partners, and oversight, owners can fulfill their duties under occupational health and safety legislation —and protect themselves when incidents arise.
At Kenny Law, we help owners and contractors navigate these obligations before problems occur. If you are planning a project or reviewing your safety protocols, our team can help you build a solid legal foundation that withstands scrutiny.