The Ontario Court of Appeal has denied the Crown’s leave to appeal in a case involving the City of Greater Sudbury, affirming that the city met the defence of due diligence under the Occupational Health and Safety Act (OHSA) following a fatal workplace accident.
The case arose from an incident in September 2016 when Cécile Paquette — a pedestrian and not an employee — was fatally struck by a road grader operated by an employee of Interpaving, a company hired by the city to perform road repairs. Both Interpaving and the city faced charges under Ontario’s Construction Projects Regulation and section 25(1)(c) of the OHSA.
Interpaving pleaded guilty, but the city was acquitted at trial. The acquittal hinged on two grounds: first, the city was neither an “employer” nor a “constructor” under the Act, and second, even if considered an employer, it demonstrated sufficient due diligence.
Appeals and Supreme Court split
The Crown’s initial appeal was unsuccessful at the Provincial Offences Appeal Court (POAC), which agreed the city was not an “employer” under the OHSA. However, the Ontario Court of Appeal later reversed this finding, ruling the city was indeed an “employer” and had breached obligations under the OHSA. Yet, due to the POAC’s failure to address due diligence, the matter was remitted back to the POAC solely to assess that defence.
The Supreme Court of Canada heard the case but split evenly (4-4), resulting in the dismissal of the appeal and effectively upholding the Ontario Court of Appeal’s decision. Thus, the due diligence defence remained to be reconsidered by the POAC.
Examination of due diligence
In its reconsideration, the POAC affirmed the trial judge’s original finding that the city had exercised sufficient due diligence, highlighting several key factors:
- The city followed standard tendering processes and had a significant history with Interpaving, having completed around 40 projects together in five years.
- The city paid a premium specifically for Interpaving’s expertise.
- It had previously notified Interpaving of regulatory non-compliance two weeks prior to the incident and followed up directly with management.
- The city actively addressed public complaints about worksite safety and informed Interpaving about issues like knocked-down fencing and inadequate road signs.
- The contract required Interpaving employees to undergo specialized safety training (NORCAT) tailored to city projects.
- City staff regularly attended and participated in progress meetings, overseeing compliance concerns.
Court’s rationale for denying leave
The Crown sought further leave to appeal, arguing two main points:
- The trial judge wrongly accepted general safety measures rather than acts directly related to the specific regulatory violations.
- Both lower courts misunderstood how workplace control impacts the due diligence defence.
The Court of Appeal, however, rejected these arguments. It ruled that the trial judge’s consideration of specific acts, such as notifying Interpaving about fencing and signage issues, sufficiently aligned with the requirement for targeted due diligence. The court emphasized that existing jurisprudence clearly mandates evaluating due diligence with respect to specific violations rather than general safety measures, indicating no further legal clarification was necessary.
Moreover, the court dismissed the Crown’s claim regarding workplace control, affirming that the POAC judge correctly applied established principles. The court highlighted that this appeal essentially sought a re-evaluation of factual findings rather than raising substantial legal questions.
The court emphasized the high threshold required for granting leave, noting it is reserved for exceptional cases that raise significant public interest or critical issues in the administration of justice. It found neither criterion met in this instance, describing the Crown’s attempt as essentially relitigating established facts.
Ultimately, the Ontario Court of Appeal concluded that no further judicial guidance was required on the due diligence defence, solidifying the city’s acquittal.
Editor’s note: Thanks to Ryan Conlin, a partner at Stringer LLP, who posted a copy of the ruling on LinkedIn. “For those following the Greater Sudbury case, the Crown’s motion for Leave to Appeal was denied today. It is an interesting and well written judgment. Well worth reading for those practicing in the OHS area,” he wrote.
HR News Canada does not currently have an electronic copy of this ruling. We will update when it becomes available.
