Due Diligence and Safety: Guidance for Project Owners in R v Greater Sudbury (City)

The Ontario Superior Court of Justice’s August 23, 2024, decision in R v Greater Sudbury (City) provides much-needed clarity on the ability of owners to rely on due diligence as a defence to claims brought under the Occupational Health and Safety Act (“OHSA”).

Background

This case arises from an on-site accident where an employee of Interpaving Limited, a general contractor hired by the City, reversed a road grader into a pedestrian intersection without proper fencing or hoarding. The Interpaving employee struck a pedestrian, fatally injuring her. As a result of this accident, the Crown brought charges against both Sudbury and Interpaving under the OHSA.

This matter was the subject of several previous court decisions, culminating with the Supreme Court of Canada’s decision confirming that the City was an “employer” under the OHSA. The court also found that the City had breached its duty as an employer to ensure the implementation of proper health and safety procedures for this project. The court did not address the City’s due diligence defence as part of its decision, however, remitting that matter to the trial court.

Due Diligence Defences for Owners

The Ontario Superior Court of Justice accepted the City’s due diligence defence, applying the following factors to determine whether the City was properly diligent:

1. the City’s degree of control over the workplace and workers;
2. whether the City delegated control to the constructor to overcome its own lack of skill, knowledge or expertise;
3. whether the City took steps to evaluate the constructor’s ability to ensure compliance with all safety regulations; and
4. whether the City effectively monitored and supervised the constructor’s work on the project to ensure that all safety regulations were complied with.

Owners should review and familiarize themselves with these factors to ensure they apply proper due diligence standards to safety at their projects.

In this case, for example, the court found that the City’s recognition of its lack of expertise as a constructor and subsequent decision to retain Interpaving (after evaluating its safety credentials and experience) strengthened its due diligence defence. The court also found that the City’s quality control inspections of Interpaving’s work helped the City’s due diligence defence and did not rise to the level of actual control over the workplace

Although this case is a helpful starting point for owners to consider what constitutes proper due diligence, prudent owners should understand that every case is decided on its own facts and merits. The specific content of proper due diligence will vary from project to project, turning on the contractual rights and obligations of the parties, as well as the level of control exerted by the owner. The lawyers at Construct Legal can help you review your contracts and projects to provide project-specific advice.

This article is not legal advice and is provided for informational purposes only.