By Dana Hagg and Pat Clark (HMC Lawyers LLP)

This month, the Supreme Court of Canada released its highly-anticipated occupational health and safety decision in R v Greater Sudbury (City), 2023 SCC 28.

This case highlights attitudes towards two contemporary concepts in occupational health and safety: (1) the “expanded” definition of employer, which extends protections to independent contractors; and (2) the overlapping and shared nature of legal duties under OH&S systems of “internal responsibility,” or as the Court called it, the “belt and braces” approach to occupational health and safety:

…the Act and Regulations use more than one method to ensure workers are protected. So, if the “belt” does not work to safeguard a worker, the backup system of the “braces” might, or vice versa. If all workplace parties are required to exercise due diligence, the failure of one party to exercise the requisite due diligence might be compensated for by the diligence of one of the other workplace parties. The purpose is to leave little to chance and to make protection of workers an overlapping responsibility.

The Court split in an equal division – a 4:4 tie – which is quite extraordinary. And in this case, even a little bit scandalous.

The City of Sudbury hired Interpaving Ltd. to repair a downtown water main. The City hired Interpaving as its “constructor,” which is comparable to the “prime contractor” under the Alberta OH&S Act. During the repairs, an Interpaving Ltd. employee drove a road grader through an intersection, in reverse, striking and killing a pedestrian. The Court had to decide whether the City breached section 25(1)(c) of the Ontario OH&S Act by failing to “ensure that the measures and procedures” required by OH&S laws were “carried out in the workplace.”

The Supreme Court of Canada typically sits in odd-numbered panels. However, one of the nine SCC judges who participated in the oral hearing, Justice Russell Brown, took an unexpected (and unannounced) leave of absence in February 2023. A SCC spokesperson admitted that Justice Brown was under investigation by the Canadian Judicial Council for alleged misconduct. Leaked police body-worn camera footage appeared to show Brown J. engaging in “an alleged alcohol-fueled confrontation” on a recent trip to Arizona. Brown J. resigned in June 2023.

Justice Brown’s resignation left eight judges who split into three camps (4:3:1). Technically, the four judges form not a “majority” but rather, a “plurality.” The plurality of four held that:

1. An owner who hires a constructor automatically becomes an “employer” under the Ontario OH&S Act; and
2. An employer may be liable for breaches of the OH&S Act even when they lack control over the worksite, unless they can prove that they exercised “due diligence.”

The Court split evenly, so the appeal was dismissed, leaving the City liable, as the Ontario Court of Appeal had found.

The Court had to interpret the terms “employer” and “worker,” as they are defined in the Ontario OH&S Act. Under the Ontario statute, a worker includes anyone who “supplies services for monetary compensation,” and an employer is anyone who “contracts for the services of one or more workers.” Seven of eight judges agreed that neither of these definitions requires an element of control over the worksite.

Under both the first and second issue, the plurality of judges faithfully interpreted the text of the Ontario legislation, with the onerous result that owners who hire “constructors” essentially become insurers against OH&S breaches. The other judges spilled a significant amount of ink trying to explain away the practical absurdities of the Ontario OH&S Act.

But what about builders and developers in Alberta?

It is possible that the first issue could be decided the same way in Alberta. In Alberta, the definition of “worker” also includes a person who “supplies services”; an “employer” includes anyone who “employs or engages one or more workers.” It is unclear why the Alberta Legislature used the word “engage” if it meant to say “contract.” In any event, “engage” seems at least as wide as “contract.” There is no apparent reason why the plurality’s reasons on this issue should not apply to Alberta’s OH&S Act. The Alberta OH&S Act clearly distinguishes that an “employer” need not be “in control of the work site,” albeit implicitly.

Further, section 12 of the Alberta OH&S Act explicitly anticipates and resolves overlapping duties (emphasis added):

Multiple obligations

1. 12(1) In this section, “function” means the function of prime contractor, owner, contracting employer, employer, supervisor, service provider, supplier, worker or temporary staffing agency.
2. (2) If a person has 2 or more functions under this Act in respect of one work site, the person shall meet the obligations of each function.
3. (3) If one or more provisions in this Act, the regulations or the OHS Code imposes the same duty on more than one person and one of the persons subject to that duty complies with the applicable provision, the other persons subject to that duty are relieved of their duty only during the time when
   • (a) simultaneous compliance of that duty by more than one person would result in unnecessary duplication of effort and expense, and
   • (b) the health and safety of any person at the work site is not put at risk by compliance with that duty by only one person.
     …

This leaves little room for speculation: Alberta Legislature clearly intended to impose overlapping duties, consistent with the “belt and braces” system of “internal responsibility.”

The Ontario OH&S Act does not have such a provision. As noted, the divided outcome in R v Greater Sudbury (City) arose out of the Court’s divergent approaches to Ontario’s (arguably) commercially absurd legislation. The dissenting judges tried to make sense of the legislation, but they were forced to resort to tortured interpretive approaches to minimize overlapping duties.

Hence, it is possible that the first issue would be decided the same way in Alberta, such that owners who hire prime contractors automatically become employers. The key interpretive issues would be whether “engaging” a worker includes “contracting” with a worker, and whether there is a material difference between an Ontario “constructor” and an Alberta “prime contractor.”

The second issue would likely be decided differently in Alberta. Unlike the Ontario statute, the Alberta OH&S Act does not effectively deem employers to be guarantors against OH&S Code breaches. The Alberta OH&S Act imposes strict liability duties on employers, but none that go as far as Ontario’s OH&S Act, s. 25(1)(c). For example, under Alberta’s legislation, the employer’s general duties are all subject to the qualification that an employer is only required to do “what is reasonably practicable.” Alberta’s OH&S Act does impose duties on employers that are more absolute, but they are more specific; for example, ensuring that workers are properly trained, or ensuring that health and safety information is readily available.

Ultimately, it seems unlikely that the plurality’s second finding could be supported by the Alberta OH&S Act.

It is worth noting that in April 2022, the Government Alberta published a guidance document entitled Occupational health and safety and the internal responsibility system: OHS information for all Alberta work site parties, which explicitly endorses “the internal responsibility system” as “the basis of Alberta’s [OH&S Act]” – that is, the so-called “belt and braces” approach of shared and overlapping worksite health and safety duties.

Despite the divided outcome, R v Greater Sudbury (City) may fairly be characterized as a cautious endorsement of OH&S systems of internal responsibility. The case also illustrates the judge’s dilemma when faced with (arguably) commercially impractical legislation. Some judges will stick to the wording, and others will try to make it make sense. The result is inconsistency and uncertainty, to the detriment of both employers and workers.

This historic outcome highlights that the SCC is not an ordinary court of appeal. It only hears matters of “public importance.” The SCC exists to develop general analytical frameworks for lower courts which enhance consistency and clarity in the law. Regrettably, this decision frustrates both of those objectives.

Read the entire R v Greater Sudbury (City) decision for free on CanLII: https://canlii.ca/t/k127r