Prosecutions under Ontario’s Occupational Health and Safety Act (“OHSA”) do not see appellate review by the Court of Appeal with the same frequency as do civil or criminal law matters, so when the Court of Appeal does speak, it is always notable. In Ontario (Labour) v Sudbury (City), 2021 ONCA 252 (CanLII), a unanimous panel comprised of Fairburn A.C.J.O., David Watt J.A., and Grant Huscroft J.A., revisited the issue of “who is an employer?” by looking back to and adopting the seminal 29-year old decision from the Court of Appeal in R. v Wyssen (1992 CanLII 7598).
Overview and Judicial History
The Court of Appeal for Ontario’s decision was penned by Associate Chief Justice J. Michal Fairburn.
The underlying case related to a fatality that occurred after a woman was struck by a road grader completing roadwork repairs. The grader driver worked for a private company, Interpaving, which was contracted by the City to complete the repairs. Interpaving was charged with violations under the Occupational Health and Safety Act (“OHSA”) and regulations, but so too was the City, both as a “constructor” and as an “employer” under the OHSA.
Interpaving was convicted at trial in the Provincial Offences court. Its conviction was not the subject of the appeal. The City was acquitted in separate proceedings, with the trial judge concluding that the City was neither an employer nor a constructor and so owed no duties under the OHSA. The trial judge went on to find that, in any event, the City had a due diligence defence to the charges.
An initial Crown appeal to the Superior Court of Justice was dismissed and leave was granted by the Court of Appeal to determine whether the appeal judge erred in concluding that the City was not an employer under the OHSA.
Who is Employer under the OHSA?
Beginning with the end, the Court of Appeal concluded that the City was in fact an employer within the meaning of the OHSA and, as a result, was liable for violations of the construction regulation found by the trial judge unless it could establish a due diligence defence. The appeal was allowed and, owing to the fact that the Superior Court appeal judge did not address the Crown’s appeal on the issue of the due diligence, the matter was remitted by the Court of Appeal, back to the Superior Court appeal judge, for a hearing of the due diligence appeal.
In interpreting the OHSA, the court began with this observation:
“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”.
The court then addressed the specific question before it, observing that under the OHSA, “employer” is defined broadly:
“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”) …
The Court explained that this definition embraces both employing and contracting for the services of workers, but that the appeal could be resolved at the first branch of the definition, based on adoption of the Court of Appeal’s decision in R. v. Wyssen.
In Wyssen, the Court of Appeal, held that “[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.
The Act establishes overlapping responsibility for health and safety and contemplates the possibility of multiple employers in a workplace. In Wyssen, the court noted that the relevant enforcement provisions in the OHSA 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.” This very strong language was not disturbed and indeed was re-emphasized by the court.
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.
The court concluded that “plainly, the City employed one or more workers at the project site within the meaning of s. 1(1) (of the OHSA). 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.
Take Away Points
All owners, constructors, and employers should look to this case to be reminded of the broad and sweeping obligations imposed upon them by the OHSA. It remains easy for an “owner” to inadvertently become an “employer”, or for an “employer” to become a “constructor”, given the language used by the court in describing the overlapping responsibilities in play.
The Court of Appeal has not shied away from the notion that employers can be very nearly in the position of an insurer who must follow detailed safety regulations. Indeed, it was with purpose that the court specifically referenced its own prior decision in Wyssen.
The duties and obligations imposed upon those who hire workers are considerable. In public welfare legislation, that obligation should always be viewed as broadly as possible.
