LOLG Intervenes before Supreme Court on Behalf of Six Major Ontario Municipalities

On November 10, the Supreme Court released its decision in R. v. Greater Sudbury (City), 2023 SCC 28. Jonathan Lisus, Zain Naqi, and John Carlo Mastrangelo acted for six large Ontario municipalities who intervened in this appeal.

The core question in the case was whether an “owner” of a construction project could become an “employer” under the Occupational Health and Safety Act—and therefore, become liable for health and safety across the entire project (including contractors and subcontractors)—if it sent quality control inspectors to the job site, but had no control of the site and no involvement in the work. The Ontario Court of Appeal ruled that the project owner in this case—the City of Greater Sudbury—was liable as the “employer” of quality control inspectors on a job site overseen by a general contractor, which had legal and actual control over the project under contract with the City.

In an unusual 4-4 decision at the Supreme Court, the appeal was dismissed (meaning that the Ontario Court of Appeal’s decision stands). The majority ruled that the City was presumptively liable based on a textual reading of the Occupational Health and Safety Act, subject only to a due diligence defence. The judges in dissent accepted the arguments put forward by LOLG on behalf of the intervener municipalities that the majority’s interpretation is an “extravagant” one that leads to “absurd" results (paras 138 and 200).

The case raises important, practical questions about the scope of owner liability particularly in complex large scale infrastructure projects and the law will continue to develop without direct, binding guidance from the Supreme Court.  The decision can be read here:  R. v. Greater Sudbury (City) 2023 SCC 28