Public Works News: November 2023

R. v. Greater Sudbury (City) Supreme Court Decision

The Supreme Court of Canada published the long-awaited decision of R. v. Greater Sudbury (City) on November 10, 2023. This landmark decision has a significant impact on how projects are managed in Ontario municipalities by changing the framework, and the liabilities, of “owners”, “employers”, and “constructors”, on municipal projects.

Here are some key details of the case, however, you can read the full case here:

  1. The City of Greater Sudbury put out a tender for a construction project for road and water main repairs. The general contractor agreed to serve as the “constructor” for the project, therefore, assuming control over day-to-day management of the project. As is very typical in municipal tenders such as this, the contract between the City and the general contractor called for minimal involvement from the City.
  2. In September 2015, a grader operated by an employee of the contractor struck and killed a pedestrian. The contractor was charged and prosecuted as the “constructor”; however, the City was also charged for breaching its obligations as a “constructor” under the OHSA, and more notably, breaching its obligations as the “employer”, despite its involvement on the project being limited to occasional visits by the City’s contract compliance inspector.
  3. The Provincial Offenses Court judge acquitted Sudbury, stating that it was not an “employer” in the project, and therefore, had acted with due diligence. The Ministry of Labour appealed to the Provincial Offenses Appeal Court, which upheld the decision. The Ministry of Labour then appealed to the Provincial Court of Appeal, which overturned the decision, finding in fact that the City was an “employer”.
  4. The City then appealed to the Supreme Court of Canada, and the case was argued a year ago. The decision released showed a 4/4 split of the judges, resulting in a rejection of the appeal. This means, the Supreme Court of Canada has found that the City is in fact an “employer” in relation to the project, and therefore charged and prosecuted by the Ministry of Labour.

The R. v. Greater Sudbury (City) will bring about a significant shift in how Ontario municipalities will need to approach their operations, particularly in terms of managing contractors involved in projects. For decades, municipalities have successfully managed risks associated with OHSA violations by ceding the control of projects to reputable general contractors. However, the Supreme Court decision defies that practice now.

The decision essentially places a greater responsibility on municipalities to proactively assess and manage the safety practices of contractors, suggesting a more hands-on and vigilant role in overseeing projects to prevent incidents like the one described in the case. It also underscores the importance of legal considerations in shaping safety management programs, recognizing the potential legal consequences for municipalities if safety standards are not met.

These operational changes collectively underscore a shift toward a more proactive and preventative approach to safety management. Municipalities should consider implementing a stringent process for selecting, monitoring, and if necessary, disciplining contractors to create a safer working environment and mitigate legal risks.

Jolene Ingribelli, Public Sector Risk Manager for BFL Canada, explains “(f)rom a risk management perspective, this decision highlights the importance and need for municipalities to have a strong risk management plan in place. We suggest this includes a review of your municipality’s current contract templates with legal counsel to ensure there is a clear division of responsibilities between parties and expectations of the vendor with respect to occupational health and safety regulations. It will be important for procurement to ensure their processes are being followed, such that vendor contracts  or purchase orders are in place with your municipality’s terms and conditions including appropriate insurance requirements, WSIB, indemnification clauses etc.  We also recommend that your municipality revisit their internal training and that staff are appropriately trained on established policies and procedures. If your municipality does not currently have a Vendor Management Program or similar system in place, consideration needs to be given to implementing this type of program that ensures there is appropriate vendor pre-qualification, and monitors vendor performance  e.g. violations or safety breaches and that corrective actions were taken. Municipalities need to exercise a level of due diligence with respect to on site health and safety which is commensurate with their level of resources and experience. Record keeping becomes increasingly important to show that your municipality took all reasonable precautions to protect the health and safety of workers and to establish a due diligence defence, if needed.”

AORS, in collaboration with BFL Canada, will host an upcoming webinar focusing on a proactive approach to addressing the impacts of the R. v. Greater Sudbury (City) decision on your municipality. In the webinar we will provide an in-depth analysis of the Supreme Court’s decision and its implications for municipalities. This will include a breakdown of key legal considerations and precedents set by the case. We will also discuss mitigation strategies for municipalities, given the potential risks and challenges outlined in the decision. The webinar will offer practical strategies and steps that municipalities can take to mitigate these risks, as well as discussions on best practices in contractor management, safety protocols and legal considerations.

On Tuesday January 23rd, 2024, AORS, in collaboration with BFL Canada, hosted a webinar to discuss the implications of this decision on Ontario municipalities. Please find the links for the webinar below. 

Panelists: 

Eric Labelle, City and Solicitor and Clerk, City of Greater Sudbury

Jolene Ingribelli, Public Sector Risk Manager, BFL Canada

Thomas Durcan, Partner, Lloyd Burns McInnis LLP

Moderated by: John Maheu, Executive Director, AORS

Recording of The Webinar

Slide Deck From The Webinar

City of Greater Sudbury’s Notice of Motion Regarding Amending the OHSA

Disclaimer: The information and opinions provided in this webinar do not, and are not intended to, constitute legal advice. All information, content, opinions, and materials provided are for general informational purposes only.

 

Thank you to BFL Canada for sponsoring this webinar!

 


Bill 153, Building Infrastructure Safety Act, 2023

The Ministry of Public and Business Service Delivery tabled Bill 153, Building Infrastructure Safety Act, 2023 on November 22, 2023 and includes proposed changes such as:

  1. Prohibit underground infrastructure owners/operators from charging for locates. Currently, the One Call Act does not explicitly authorize or prohibit charging for locates, however, the proposed changes would make it clear and prohibit these charges. This will align with the long-standing industry practice across Canada and the United States.
  2. Better align Ontario One Call powers and responsibilities with other administrative authorities. Explicitly allow Ontario One Call to charge and collect fees, like all other administrative authorities. Allow the Minister to specific additional objects for Ontario One Call, similar to the TSSA.
  3. Remove a duplicative recourse provision. Repeal a clause of the Act (Section 17(1)(c)) that currently entitles excavators to compensation and to seek recourse, through the Ontario Land Tribunal against One Call members for failing to provide a locate within the legislative time limit. This provision was added in the Act in 2022, however, the administrative penalties regime, which comes into effective Spring 2024, is the new mechanism by which One Call members will be held to account.
  4. Enhance regulation-making authority and make consequential amendments. Allow the Minister to make improvements to locate delivery in the future via regulation (e.g. relating to how excavators request locates).

It is important to note that outside and separately from the Building Infrastructure Safety Act, 2023, the Ministry will be proposing multiple changes to provide more flexibility and enhance efficiencies in locate deliveries. An example of this was included in our November 14th e-blast update to members where the Ministry is proposing the longer time limit to address stakeholder concerns with meeting standard locate time limits from five business days to ten business days for large projects. The Ministry is also proposing regulatory changes to establish process obligations for excavators when submitting large project locate projects.

There is a consultation period for the proposed legislation. AORS will submit feedback on behalf of the membership during this consultation period, and members are welcome to both share their feedback with AORS, as well as submit their own.

Here is the press release from the Province.

If you have any questions or concerns, please contact Kelly Elliott, AORS Marketing and Communications Specialist at kellyelliott@aors.on.ca.