“The City of Sudbury contracted with Interpaving Limited to act as constructor to repair a downtown water main. During the repairs, an Interpaving employee struck and killed a pedestrian when driving a road grader, in reverse, through an intersection. The Ministry charged the City under s. 25(1)(c) of Ontario’s Occupational Health and Safety Act (“Act”) for failing to ensure that certain safety requirements of the accompanying regulation, Construction Projects (“Regulation”), had been met. The City conceded it was the owner of the construction project and acknowledged that it sent its quality control inspectors to the project site to oversee Interpaving’s contract compliance, but denied that it was an employer, arguing that it lacked control over the repair work and had delegated control to Interpaving.
The provincial court trial judge acquitted the City because Interpaving, not the City, had direct control over the workers and the intersection and thus the City was not an employer under s. 1(1) of the Act. Alternatively, the trial judge found that even if the City was an employer and breached its obligations, it acted with due diligence. The provincial offences appeal court upheld the trial judge’s decision but did not address the finding that the City acted with due diligence. The Court of Appeal set aside the decision of the provincial offences appeal court judge, found the City liable under s. 25(1)(c) as an employer, and remitted the question of the City’s due diligence to the provincial offences appeal court.”
The SCC (4:4, “on equal division”) dismissed the appeal.
Justice Martin wrote as follows (at paras. 2-6, 17-20, 32-34, 37-40, 61):
“The legal issue on this appeal concerns the statutory liability, if any, of the City as an employer for breaching this same duty. In response to being charged and prosecuted by the Ontario Ministry of the Attorney General (Ministry of Labour, Immigration, Training and Skills Development) (“Ministry”) under s. 25(1)(c), the City conceded it was the owner of the construction project and acknowledged that it sent quality control inspectors to the project, but denied that it was an employer, arguing that it lacked control over the repair work and had delegated control to Interpaving.
The trial judge acquitted the City because Interpaving, not the City, had direct control over the workers and the intersection and thus the City was not an employer under s. 1(1) (paras. 86-88, reproduced in A.R., vol. 1, at pp. 16-17). Alternatively, even if the City breached its obligations, it acted with due diligence as “every precaution reasonable in the circumstances” was taken (para. 91). The City’s acquittal on the basis that it was not an employer was upheld by the provincial offences appeal court; the court did not address the Ministry’s appeal of trial judge’s finding that the City acted with due diligence (2019 ONSC 3285, 88 M.P.L.R. (5th) 158). The Court of Appeal, in a unanimous decision, allowed the appeal and set aside the decision of the provincial offences appeal court judge. The court affirmed and applied the definition of “employer” established in its leading 1992 decision, R. v. Wyssen, 10 O.R. (3d) 193, found the City liable under s. 25(1)(c) as an employer, and remitted the question of the City’s due diligence to the provincial offences appeal court (2021 ONCA 252, 15 M.P.L.R. (6th) 161). The City appeals to this Court and asks us to determine what role control plays in regulatory prosecutions against employers under s. 25(1)(c) of the Act.
The short answer is that while control over workers and the workplace may bear on a due diligence defence, nothing in the text, context or purpose of the Act requires the Ministry to establish control over the workers or the workplace to prove that the City breached its obligations as an employer under s. 25(1)(c).
In s. 1(1), the Act defines “employer” broadly — without any reference to control — and charges all employers to uphold several statutory duties. There is simply no reason to embed a control requirement into the definition of an “employer” or graft a control requirement onto s. 25(1)(c) when the legislature deliberately chose not to do so. Indeed, diminishing an employer’s duties by reading in a control requirement under either or both provisions would thwart the purpose of this remedial public welfare legislation. This Act is specifically designed to expand historically narrow safeguards and seeks to promote and maintain workplace health and safety by expressly imposing concurrent, overlapping, broad, strict, and non-delegable duties on multiple workplace participants in what is known as the “belt and braces” strategy. The interpretation advanced by the City not only defeats this intention, but would also create undesirable and unnecessary uncertainty and jeopardize efficient administration of the Act’s strict liability offences. Instead, control is properly considered in deciding whether an employer who has breached the Act can nevertheless defend on the basis that it acted with due diligence. It is open to an accused to prove that its lack of control suggests that it took all reasonable steps in the circumstances.
Accordingly, I agree with the Court of Appeal that the City was an employer and breached its duty under s. 25(1)(c). I would therefore dismiss the appeal and uphold the Court of Appeal’s order remitting the question of due diligence to the provincial offences appeal court.
It is clear from the text of the definition of “employer” that control is not an element that the Ministry must prove to establish that an accused is subject to the duties of an employer. First, the definition contains no reference to control. It is simply not there when it could have been, if that was the intention of the legislature. This Court must give effect to what the legislature included in the definition of “employer”. To conjecture and then grant priority to what the legislature chose not to include, by adding an additional element into the definition, “would be tantamount to amending [the Act], which is a legislative and not a judicial function” (R. v. McIntosh,  1 S.C.R. 686, at para. 26 (emphasis deleted); see also R. v. Hinchey,  3 S.C.R. 1128, at para. 8).
Second, at common law, a person’s relationship with an independent contractor is typically characterized by a lack of control on the part of that person over the contractor (671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59,  2 S.C.R. 983, at paras. 33-48). The phrase “contract for services” is used, at common law, to refer to such relationships. Comparatively, “contract of service” is used to denote an employment agreement. By referring to a “contract for services” in the definition of “employer”, the legislature signaled its intent to capture employer‑independent contractor relationships under the “employer” definition (Wyssen, at pp. 196-98). Since Wyssen found that such relationships are captured by the definition, it follows that a person can be an employer under the Act even where they lack control over the worker or the workplace. Wyssen’s interpretation applies to all employees and workplaces, including those in the construction industry.
In addition, as noted in Wyssen, prior to the Act’s enactment, other pieces of worker safety legislation defined “employer” in a way that excluded independent contractor relationships (p. 199, citing Industrial Safety Act, 1971, S.O. 1971, c. 43, s. 1(e); see also, e.g., The Construction Safety Act, 1973, S.O. 1973, c. 47, s. 1(h)). The shift in this Act to expressly include employer-independent contractor relationships within the definition of “employer” signals the legislature’s intention to remove from the definition the traditional common law control condition that distinguishes employment and independent contractor relationships. Incorporating control into the s. 1(1) definition would therefore reintroduce a characteristic of the former regime, which was abolished because it failed to adequately promote and protect workplace safety.
It is also significant that while the legislature did not include control in the definition of “employer”, it did in the definition of “constructor”. In s. 1(1), “constructor” is defined as “a person who undertakes a project for an owner”; “undertaking a project” involves assuming control over it (Ontario (Ministry of Labour) v. Reid & DeLeye Contractors Ltd., 2011 ONCJ 472, at para. 42 (CanLII)). The absence of a control requirement for employers thus reflects an intentional legislative choice that must be respected.
The duty in s. 25(1)(c) must be understood in the context of the scheme of the Act, including other duties contained therein, the wide definition of “employer”, and the existence of a due diligence defence under s. 66(3)(b).
To begin, and to state the obvious, s. 25 imposes various, differently worded duties on employers. Some are drafted narrowly. For example, ss. 25(1)(b) and 25(1)(d) create duties respecting “the equipment, materials, and protective devices provided by the employer”. Similarly, the duty on workers set out in s. 28(1)(b) to “use or wear” equipment, protective devices, or clothing is restricted to the items that the “worker’s employer requires to be used or worn”. This juxtaposition of narrow duties with the more broadly worded s. 25(1)(c) does not suggest that s. 25(1)(c)’s duty is implicitly narrow. Rather, the narrower provisions show that the legislature intentionally limited some duties (such as s. 25(1)(b) and (d)) to the relationship between an employer and a worker, whereas other duties, including s. 25(1)(c), were intentionally drafted broadly so as to focus on the employer’s connection to the workplace rather than any particular worker (R. Sullivan, The Construction of Statutes (7th ed. 2022), at pp. 249-52). The legislature’s choice ought to be respected, and there is no need to read down or read into s. 25(1)(c)’s explicitly expansive text.
Second, the broad definition of “employer” is relevant context for interpreting s. 25(1)(c). The breadth of the employer’s duties and the broad scope of the definition of “employer” are mutually reinforcing. Narrowing s. 25(1)(c) by reading a control requirement into it runs contrary to Wyssen and the modern approach to statutory interpretation.
Third, the existence of the due diligence defence in s. 66(3)(b) of the Act is relevant context because it means that employers who breach s. 25(1)(c) will not be subject to penalties under the Act if they can show they took all reasonable steps to avoid the breach. Section 66(3)(b) therefore functions as a safety valve, in which the presence of control may be a factor in assessing due diligence. As a result, there is no justification for narrowing the offence under s. 25(1)(c) by overlaying a control requirement. Concerns about fairness are answered by the availability and content of this defence.
Reading a control requirement into s. 25(1)(c) would also be inconsistent with the purpose of the Act. The Act, to repeat, is a public welfare statute. Its purpose is to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace. This purpose is achieved through the imposition of shared and overlapping duties: the “belt and braces” regulatory strategy.
A clear example of this approach is found in the overlap between a constructor’s and employer’s duties. Section 23(1)(a) requires constructors to ensure that “the measures and procedures prescribed by this Act and the regulations are carried out on the project”, mirroring the employer’s duty under s. 25(1)(c). This overlap is explicit and intentional. Indeed, s. 23(1)(b) requires constructors to ensure that “every employer . . . performing work on the project complies with this Act and the regulations”. It is entirely in keeping with the regulatory structure and strategy that the Act deploys to achieve worker safety for an employer to have duties that reciprocally overlap with the duties of a constructor irrespective of these entities’ respective degrees of control over a workplace or a hazard there. Similarly, the required expansive and generous interpretation of the Act means that there may also be more than one employer who is responsible for the safety of the workplace and workers.
Concern that overlapping duties will create confusion because different actors may not coordinate with each other and may implement competing or inconsistent safety measures is unwarranted. Cooperation and communication between workplace actors is built into the Act’s scheme (United Independent Operators, at para. 55, citing the Ministry’s Guide to the Occupational Health and Safety Act (1978), at p. 28; see also West Fraser Mills, at para. 43). The Act also incentivizes such behaviour: where actors fail to cooperate and communicate, it is less likely that they will be able to successfully mount a due diligence defence. For example, in London Excavators, a subcontractor on a construction project was unable to establish the due diligence defence because of its unreasonable reliance on a general contractor’s miscommunication about the location of a hazard (p. 40).
In summary, a court must consider three questions where an owner who contracts for the services of a constructor on a construction project is prosecuted for a breach of s. 25(1)(c):
- First, has the Ministry proven beyond a reasonable doubt that the Act applied to the accused because the accused was an employer under s. 1(1) of the Act? An owner is an employer if it (i) employed workers at a workplace where an alleged breach of s. 25(1)(c) occurred; or (ii) contracted for the services of a worker at that workplace (including for the services of a constructor). The Ministry is not required to prove that the owner had control over the workplace or the workers there.
- Second, has the Ministry proven beyond a reasonable doubt that the accused breached s. 25(1)(c) of the Act? There is a breach of s. 25(1)(c) if the safety measures prescribed by the Regulation are not carried out in the workplace to which the owner/employer is connected by a contractual relationship with employees or an independent contractor. Further, the Ministry is not required to prove that the owner had control over the workplace or the workers there.
Third, if the Ministry proves the above, has the accused proven on a balance of probabilities that it should avoid liability because it exercised due diligence under s. 66(3)(b) of the Act? Relevant considerations may include, but are not limited to, (i) the accused’s degree of control over the workplace or the workers there; (ii) whether the accused delegated control to the constructor in an effort to overcome its own lack of skill, knowledge or expertise to complete the project in compliance with the Regulation; (iii) whether the accused took steps to evaluate the constructor’s ability to ensure compliance with the Regulation before deciding to contract for its services; and (iv) whether the accused effectively monitored and supervised the constructor’s work on the project to ensure that the prescriptions in the Regulation were carried out in the workplace.”