In R. v. Greater Sudbury (City), the Supreme Court of Canada (SCC) has ruled that the City of Greater Sudbury (City) can be held liable as an “employer” under Ontario’s Occupational Health and Safety Act (OHSA) for the death of a pedestrian, despite having appointed a third-party as the project’s “constructor.”

Background

In May 2015, the City began construction in downtown Sudbury. While the City was the project owner, it engaged Interpaving Limited (Interpaving) as the project’s “constructor.” The only City employees working on the project were a small group of quality control inspectors.

In September 2015, an Interpaving employee fatally struck a pedestrian while driving a construction vehicle, and the City and Interpaving were charged with having violated the OHSA’s Construction Projects regulation, O. Reg. 213/91 (O. Reg 213/91). At trial, the City was successful in having the charges dropped on the basis that it was neither a “constructor” nor “employer.” While the trial judge’s finding was upheld on appeal to the provincial offences appeal court, the Ontario Court of Appeal (ONCA) unanimously held that the City was an “employer” and the case should be remitted to the provincial court to determine whether the City acted with due diligence.

In a rare judgement, the SCC was divided 4-4 in its decision. Since a majority is required to overturn a lower court’s ruling, the appeal was dismissed, and the ONCA’s decision was upheld.

The SCC’s Decision

Justice Martin (writing on behalf of 4) held that the City was an “employer” for the purposes of determining liability under Ontario’s OHSA.

Section 25(1)(c) of the OHSA provides that an “employer” shall ensure that certain measures and procedures under the legislation are carried out in the workplace. Justice Martin noted that, under Ontario’s statutory scheme, an owner is an “employer” if it employs workers at a workplace where an alleged breach of section 25(1)(c) occurs, or where it contracts for the services of a worker at that workplace, including for the services of a contractor. According to Justice Martin, whether an owner is an employer under Ontario’s OHSA does not depend on whether it exercises control over the workplace or the workers. Per Justice Martin, the City was an employer of both the quality control inspectors whom it employed, and of Interpaving with whom it contracted to undertake the construction project.

As noted above, section 25(1)(c) of the OHSA requires an employer to carry out any measures and procedures prescribed for the workplace under the OHSA regulations, which includes O. Reg. 213/91. The Ministry of Labour must prove beyond a reasonable doubt that the measures and procedures prescribed under the regulations were not carried out in the workplace to which the employer is “connected” by a contractual relationship with employees and/or independent contractors. Whether the employer has control over either the workplace or the workers is not relevant. Since two safety measures prescribed under O. Reg 213/91 were not implemented at the construction project, Justice Martin was satisfied that section 25(1)(c) had been breached.

Section 66(3)(b) provides a statutory due diligence defence to employers. An employer can avoid penalty if it can prove, on a balance of probabilities, that it took every reasonable precaution in the circumstances to discharge its duties under that section. It is at this step in the analysis that control can be considered, and an employer can argue that its lack of control suggests that it took all reasonable steps. Justice Martin, in dismissing the appeal, upheld the ONCA’s order remitting the issue of whether the City had established the due diligence defence to the provincial offences appeal court.

Dissenting Opinions

Justices Rowe and O’Bonsawin (with Justice Karakatsanis concurring) agreed that the City was an employer of its quality control inspectors but disagreed that the City was an employer of the workers retained by Interpaving. They held that an employer’s duty under section 25(1)(c) only applies to work which the employer controlled and performed through their workers. They explained that their functional view of the section 25(1)(c) duty avoids an overly broad interpretation that assigns liability to parties who are not responsible for an undertaking. The Justices would have remitted the matter to the Ontario Court of Justice to assess whether the regulations fell within the City’s section 25(1)(c) duty.

Justice Côté would have restored the trial judge’s acquittal on the basis the City was not an “employer” owing regulatory obligations.

Key Takeaways

This decision from the SCC is likely to have far reaching consequences for employers and project owners, including:

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Point2Homes.com pulled data from 30 largest Ontario cities to show that Greater Sudbury is the third most affordable city among those listed

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Greater Sudbury is among the most affordable Ontario cities to live in, according to a recent report by Point2Homes.com.

Pulling data from the province’s 30 largest cities, the report outlines how much house city residents throughout the province can expect to purchase for $400,000.

Greater Sudbury ranks No. 3, at 1,000 square feet.

The Nickel City falls behind Thunder Bay (1,325 square feet) and Chatham-Kent (1,081 square feet).

Perhaps unsurprisingly, downtown Toronto carried the lowest square footage for $400,000, at 395.

The price per square foot in Greater Sudbury was $400, which compares to $302 in Thunder Bay and $1,013 in downtown Toronto.

Point2Point said the data used in the report was compiled from various sources, such as realtors’ associations, brokerages and listed portals such as realtor.ca., redfin.ca and others. The space one could buy for $400,000 was calculated by dividing $400,000 by the price per square foot in each city.

Ontario’s housing prices hit a peak in May, when the average reached $930,000. This dipped to $855,990 by October, which is nearly equal to the same month in 2022 “and very much out of the financial league of at least half the buyers in Toronto, not to mention the less expensive cities in the province,” according to Point2Homes.

Despite Greater Sudbury’s comparable affordability, they’ve also been tackling an ongoing affordability crunch, with current affordable housing stock falling well short of demand.

In Greater Sudbury, $368,586 was considered an affordable purchase price in 2022, according to a report by N. Barry Lyon Consultants Ltd. released earlier this year, which the City of Greater Sudbury commissioned.

In July 2022, the average residential resale price in Greater Sudbury was $452,500, which was a significant jump from the $138,900 recorded in 2005. The greatest increases have taken place in the past three years, with an 11.4-per-cent residential price growth jump recorded in 2020, followed by 20.7 per cent in 2021 and 22.1 per cent in 2022.

Point2Point is an online real estate marketplace.

Sky watchers and fans of astronomy across Ontario are preparing themselves for a rare celestial event.

On Monday, April 8, the sun, the moon and the Earth will align perfectly to create a total solar eclipse that will be visible across parts of Canada, the United States, and Mexico.

The eclipse will follow a path along the St. Lawrence River, putting areas of southern Ontario and Quebec into the path of totality between 1:00 and 4:00 p.m.

"A solar eclipse is what happens when the moon passes in front of the sun and obscures part or all of the sun's light," said Ivan Semeniuk, science reporter for The Globe and Mail.

"At best, Canadian locations will get an eclipse that's about three and half minutes long."

The further north or west from the St. Lawrence River a person is, the less of a view of the eclipse they will have.

In northeastern Ontario, Semeniuk says people will experience a very deep partial eclipse, with about 90 per cent of the sun covered by the moon.

"During the partial phases, the sun looks like it's having a bite taken out of it, progressively deeper and deeper and deeper," explained Semeniuk.

"As the moon moves into position in front of the sun, the sun eventually becomes a narrow crescent."

At Science North in Greater Sudbury, the science centre will be hosting a viewing party and activities indoors and outdoors on Monday. The partial eclipse will be viewable in the city from about 2:00 in the afternoon, reaching its peak just before 3:30 p.m.

With only a partial viewing, the sky won't be totally dark but it will still dim enough for people to see some stars, said Olathe MacIntyre, staff scientist at Science North in Sudbury.

"So you might actually also be able to see Venus, which would just be kind of below and to the right of the Sun, and Jupiter above and to the left," said MacIntyre.

Those hoping to view the eclipse may have to contend with cloudy weather, but MacIntyre said that shouldn't stop people from trying.

"Even if it's cloudy, still take a look. You might be able to see something through the clouds with eclipse glasses, or with a telescope that has a fuller filter or a special solar telescope."

MacIntyre said people wanting to watch the eclipse will need to wear proper solar eclipse glasses, with the International Organization for Standardization (ISO) 12312-2 code on the inside.

David Doherty and Carolyn Wood run the Dortwood Observatory, a private observatory in Webbwood, Ontario, not far from Greater Sudbury. They are organizing an eclipse watch party through a Facebook livestream.

"I'll be outside with two telescopes, one that will livestreaming and one that people can look through if they want with the special filter on it," said Doherty.

At the library in the nearby town of Massey, people can stop in to watch the livestream and volunteers will be on hand to teach people how to make safety glasses to view the eclipse safely.

CBC will also have full-day coverage of the eclipse on Monday. Coverage will start at 6 a.m. ET for Morning Live with Heather Hiscox on location in Niagara Falls on News Network.

A "CBC News Special: The Eclipse in Canada" will begin at 1 p.m. ET with Heather Hiscox in Niagara Falls and Andrew Nichols in Toronto. The program will feature live reports from Mexico, the U.S., southern Ontario, Quebec and Atlantic Canada.

Coverage can also be seen and heard on CBC News Network, CBC TV, CBC Gem, and streaming live on the CBC News app, cbcnews.ca and CBC News Explore.

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Unseasonal heat swept across parts of Ontario on Friday, breaking daily temperature records in several cities, including Sudbury.

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Sudbury’s high on Friday was 4.9 C, breaking the previous record of 4.4 C set in 1966.

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This compares to the average high temperature of -6.8 C for this date.

The lowest temperature for this date is -32.8 C, which was set in 1962.

As for the rest of Ontario, the temperature cracked 11 C by 10 a.m. at Toronto Pearson International Airport, busting a daily record set on the same day in 1938, when it reached a high of 10.6 C.

Daily temperature records have fallen across Canada this winter, reflecting what forecasters had warned would be a warmer winter due to a strong El Nino climate pattern paired with the effects of human-caused climate change.

“We have seen warm temperatures like this in the past in February,” said Peter Kimbell, an Ottawa-based warning preparedness meteorologist with Environment Canada.

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“But the thing is, it’s continuing a trend of very warm temperatures all winter long.”

It was nearly five degrees warmer than average in December and 3.4 degrees above average last month in Toronto, Kimbell said.

At the airport in London, Ont., the temperature hit 12 C by noon on Friday, surpassing a record set last year, according to Environment Weather data going back to 1941.

Ottawa hit 7.7 C at 1 p.m. Friday, slightly above a daily record Kimbell said was set in 1990.

The unseasonable warmth across Canada has had far-reaching effects.

Some First Nations in Manitoba and northern Ontario declared states of emergency this week due to impassable winter roads, which communities depend on for deliveries of fuel, food supplies and construction materials.