Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.
Hi, here’s what you need to know about the Supreme Court of Canada this week in 5 minutes.
- The SCC is releasing its decision in Ontario (Labour) v. Sudbury (City) on Friday, Nov. 10. At issue is whether a municipality is liable as an employer when it contracts work to a third party.
- On Nov. 3, the SCC released its decision in R. v. Bertrand Marchand, 2023 SCC 26. The Court (6-1) ruled that mandatory minimum sentences for child luring offences are unconstitutional.
Head over to Fantasy Courts to lock in your predictions for this week’s decision or read more about the cases below.
Municipality Liability when Contracting to a Third Party
Sudbury contracted Interpaving Limited to repair utilities and repave streets affected by the repairs. An Interpaving Limited employee operating a road grader struck and killed a pedestrian attempting to cross a street in a construction zone. The construction zone did not have safety measures in place required by legislation. The Ministry of Labour charged the City for several offences as a “constructor” and an “employer” under the Occupational Health and Safety Act and Construction Projects regulation.
The Ontario Court of Justice acquitted the City on all charges, and the Superior Court dismissed an appeal. The Court of Appeal granted leave to appeal regarding the three charges against the City as an employer and set aside the acquittals. The Court of Appeal concluded that the City was an employer within the meaning of the Act and found the City liable for safety violations unless it could establish a due diligence defence. The Crown conceded that the factual findings to determine guilt on one count had not been made at trial. The Court of Appeal remanded the case to Superior Court to determine whether the City had established a defence of due diligence regarding the other two charges.
What Was Argued at the SCC?
Appellant: The appellant City argued that the Court of Appeal applied a purely textual interpretation of the Occupational Health and Safety Act that ignores the express intention of the Legislature, jurisprudence, and industry practice. They allege that this approach would result in every “project owner” being an “employer” tasked with ensuring compliance with health and safety regulations. This would affect homeowners, businesses and other “project owners” by holding them responsible for health and safety compliance without allowing them to contract out this responsibility, including for specialized construction fields.
Respondent: The respondent argued that the practical realities of the workplace require multiple parties to be held responsible for enforcing protections under the Occupational Health and Safety Act. The appellant’s approach is too narrow and it is in the best interest of workers to enforce a system with “overlapping” responsibilities of parties involved in the project.
What Else Should You Know Before Making a Prediction?
The bench was particularly active in this appeal. Justice Rowe seemed eager to allow the appeal on the basis that the Court of Appeal decision puts unrealistic expectations on municipalities and renders them liable for a project if at some point in time they had one of their own employees show up at a project. Most of the other justices did not appear to be of the same mind, but I could see them wanting to clarify the implications of the Court of Appeal decision. I’m leaning towards appeal dismissed.
On Nov. 3, the SCC released its decision in R. v. Bertrand Marchand, 2023 SCC 26, which addressed the Marchand and H.V. appeals.
Held (6:1): Mandatory minimum sentences for child luring offences are unconstitutional. The appeal in Marchand’s case is allowed in part. Marchand’s sentence for luring a child should be increased from 5 months to 12 months’ imprisonment, and it should be served consecutively, not concurrently, to his sentence for sexual interference. The appeal in V’s case is dismissed and the sentence of four months’ imprisonment affirmed.
- The child luring offences set out in section 172.1(2) (a) and (b) of the Criminal Code encompass various illicit purposes and conduct, with varying moral culpability and severity.
- The broad scope of conduct in foreseeable scenarios that fall under child luring provisions of the Code result in grossly disproportionate sentences.
- Mandatory minimum sentences for child luring in the Criminal Code are inconsistent with section 12 of the Charter.
- Despite invalidating mandatory minimums, child luring is still a serious offence. In some cases, the appropriate punishment for child luring may be imprisonment equal to or longer than the unconstitutional minimum sentences.
Predictions: About 77% predicted both appeals would be allowed, so the fact one was allowed and one dismissed ended most players’ streaks. This was a particularly tricky one since the majority found the mandatory minimum unconstitutional, but increased the sentence in the Marchand case to match the mandatory minimum.
(And thanks to Dylan Challinor, 3L at Lakehead, for his help writing this week’s newsletter)
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