Corporation of the City of Greater Sudbury Appellant v. Ministry of the Attorney General (Ministry of Labour, Immigration, Training and Skills Development), 2023 SCC 28

SUPREME COURT OF CANADA Citation: R. v.

Greater Sudbury (City), 2023 SCC 28 Appeal Heard: October 12, 2022 Judgment Rendered: November 10, 2023 Docket: 39754 Between: Corporation of the City of Greater Sudbury Appellant and Ministry of the Attorney General (Ministry of Labour, Immigration, Training and Skills Development) Respondent - and - Retail Council of Canada, Regional Municipality of York, Regional Municipality of Peel, Regional Municipality of Durham, Regional Municipality of Halton, Regional Municipality of Waterloo, Regional Municipality of Niagara and Workers’ Compensation Board of British Columbia Interveners Coram: Wagner C.J. and Karakatsanis, Côté, Brown, * Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.

Reasons : (paras. 1 to 62) Martin J. (Wagner C.J. and Kasirer and Jamal JJ. concurring) Joint Dissenting Reasons : (paras. 63 to 162) Rowe and O’Bonsawin JJ. (Karakatsanis J. concurring) Dissenting Reasons : (paras. 163 to 201) Côté J.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . * Brown J. did not participate in the final disposition of the judgment. Corporation of the City of Greater Sudbury Appellant v.

Ministry of the Attorney General (Ministry of Labour, Immigration, Training and Skills Development) Respondent and Retail Council of Canada, Regional Municipality of York, Regional Municipality of Peel, Regional Municipality of Durham, Regional Municipality of Halton, Regional Municipality of Waterloo, Regional Municipality of Niagara and Workers’ Compensation Board of British Columbia Interveners Indexed as: R. v. Greater Sudbury (City) 2023 SCC 28 File No.: 39754. 2022: October 12; 2023: November 10.

Present: Wagner C.J. and Karakatsanis, Côté, Brown, * Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ. on appeal from the court of appeal for ontario Provincial offences — Occupational health and safety — Duties of employers — Construction projects — Control over workers and workplace — City contracting with constructor to repair water main — Pedestrian struck and killed by road grader during repairs — City charged with breaching duties of employers under provincial occupational health and safety legislation — Whether city liable as employer for breach of duties — Occupational Health and Safety Act, R.S.O. 1990, c.

O.1, ss. 1(1) “employer”, 25(1)(c), 66(3) (b) — Construction Projects, O.Reg. 213/91. 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. Held on equal division (Karakatsanis, Côté, Rowe and O’Bonsawin JJ. dissenting): The appeal should be dismissed. Per Wagner C.J. and Martin , Kasirer and Jamal JJ.: There is agreement with the Court of Appeal that the City was an employer and breached its duty under s. 25(1) (

c) of the Act , and that the issue of the City’s due diligence defence should be remitted to the provincial offences appeal court. 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 workplace to prove that the City breached its obligations as an employer under s. 25(1) (c).

The Act seeks to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace and it fulfils its public welfare purpose by allocating various occupational health and safety duties among various classes of workplace actors, including constructors, employers and owners. These duties are often concurrent and overlapping: several different actors may be responsible for the same protective functions and measures — this is known as the “belt and braces” approach to occupational health and safety.

Under this approach, where multiple workplace entities fail to safeguard health and safety, they cannot point to others’ failures as an excuse for their own; each workplace participant must ensure that the workplace is safe. Section 66(1) (

a) of the Act makes it an offence for a workplace actor to breach one of the Act ’s obligations, including s. 25(1) (c), which is a strict liability offence: the Ministry only needs to prove the actus reus beyond a reasonable doubt to ground a conviction. 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), a court must first consider whether the Ministry has 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 employed workers at a workplace where an alleged breach of s. 25(1) (

c) occurred, or 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. 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. A control requirement should therefore not be embedded into the definition of an employer when the legislature deliberately chose not to do so.

Second, by referring to a contract for services in the definition of employer, the legislature signalled its intent to capture employer-independent contractor relationships under the employer definition and to remove from the definition the traditional common law control condition that distinguishes employment and independent contractor relationships. A court must then determine whether the Ministry has 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. Again, the Ministry is not required to prove that the owner had control over the workplace or the workers there. A review of s. 25(1) (c)’s text, context, and purpose reveals that control on the part of the accused is not an element of this duty. The plain text of s. 25(1)(

c) does not limit this duty to workers over which the employer has control. The duty in s. 25(1)(

c) must also be understood in the context of the scheme of the Act , the wide definition of employer and the existence of a due diligence defence under s. 66(3) (

b) of the Act . Section 25(1) (

c) was intentionally drafted broadly so as to focus on the employer’s connection to the workplace rather than any particular worker. The breadth of the employer’s duties and the broad scope of the definition of “employer” are mutually reinforcing. While the

interpretation of ss. 1(1) and 25(1)(

c) raises separate questions, these sections should be read harmoniously as they are nonetheless related. Reading a control requirement into s. 25(1) (

c) would narrow the employer’s duties and would introduce an internal inconsistency into the Act by pairing a broad definition of “employer” with a narrow

interpretation of s. 25(1)(c), rather than finding harmony between these provisions and treating them as mutually reinforcing as the legislature intended. In addition, the existence of the due diligence defence in s. 66(3) (

b) 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) functions as a safety valve, in which the presence of control may be a factor in assessing due diligence. Reading a control requirement into s. 25(1) (

c) would also be inconsistent with the purpose of the Act . The act 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. A control requirement could defeat the Act ’s public welfare purpose of creating overlapping responsibility and would essentially give workplace actors a tool for frustrating regulatory prosecutions at the outset, by arguing that they had no control over a hazard because other parties had greater comparative control over that hazard.

Finally, a court must determine whether the accused has proven on a balance of probabilities that it should avoid liability because it exercised due diligence under s. 66(3) (

b) of the Act . Control should only be considered at this stage of the analysis. It is open to an accused to prove that its lack of control suggests that it took all reasonable steps in the circumstances. Shifting the burden to the employer to establish a due diligence defence incentivizes employers to take all steps within their control to achieve workplace safety and prevent future harm so that they may avail themselves of the defence should harm occur.

That an employer’s degree of control over the parties in the workplace is relevant to its due diligence defence also answers fairness concerns about imposing liability on an employer for a breach caused by another party.

Relevant considerations for the court’s determination at this stage may include, but are not limited to: the accused’s degree of control over the workplace or the workers; 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 accordance with the Regulation; 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 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.

In the instant case, the City was an employer of the quality control inspectors, whom it employed directly and dispatched to the construction project. The City was also an employer of Interpaving, with whom it contracted to undertake the construction project. As an employer of the inspectors and of Interpaving, the City was required by s. 25(1) (

c) of the Act to ensure that the measures and procedures prescribed were carried out in the workplace. On the date of the accident, measures required by the Regulation — a fence between the construction work and the public way as well as signallers — were not carried out in the workplace. Thus, the City, as employer, committed the offence under s. 25(1) (c).

Per Karakatsanis, Rowe and O’Bonsawin JJ. (dissenting): The appeal should be allowed. The City is the employer of its quality control inspectors; therefore, the scope of its duties under s. 25(1) (

c) of the Act must be examined. Properly interpreted, s. 25(1) (

c) holds employers liable for breaching the regulatory measures which apply to them. Where certain measures in the Regulation do not specify to whom they apply, these measures apply to an employer when they relate to the work that the employer controlled and performed through their workers. As the courts below did not properly analyze whether the offence was made out, the matter should be remitted for reconsideration by the provincial court to consider the applicability of the regulatory measures. The definition of employer in s. 1(1) of the Act covers two broad relationships.

The first branch of the definition is satisfied if the person employs one or more workers. It focuses on the employment contract and reflects the traditional conception of a direct employer-employee relationship. However, the fact that a party is an employer does not mean that they are an employer to all workers at a workplace or project, which may affect the scope of their responsibilities. The text of the definition of “employer” is expressly focused on a party’s relationship to workers and it is inappropriate to narrow it by considering that party’s relationship to a workplace.

The latter relationship only becomes relevant at the stage of determining an employer’s duties. Accordingly, the first branch of the definition is satisfied where a traditional employment relationship exists. The second branch of the definition involves a person who contracts for the services of one or more workers. The second branch prevents parties from removing themselves from the application of the Act where they subcontract out work, rather than directly hiring workers through an employment contract.

It ensures that the substance of the employer-worker relationship is not determined by the manner in which it is described in the contract. When an owner contracts with a constructor, they are not seeking to subcontract out particular tasks to any independent contractor instead of hiring workers directly through an employment contract; rather, they are asking an entity to assume plenary oversight and authority to undertake the entire project.

This relationship reflects the practical reality of the construction industry, where owners promote safety by transferring responsibility to constructors with relevant expertise. The owner-constructor relationship does not generally fall within the second branch of the employer definition in s. 1(1). The Act is specifically designed so that an owner can take a hands-off approach to overseeing the project relative to the constructor. A constructor undertakes the project, which indicates that overall authority for the project, including the coordination of health and safety, falls to the constructor.

Treating an owner as automatically being an employer of the workers hired or contracted for by the constructor under the second branch of the employer definition would undermine the design of the scheme. It would mean that by virtue of engaging a constructor to oversee a project, project owners would be assigned responsibilities that would require them to play an active role across the project — a role that the Act sought to avoid by enabling them to contract with a constructor in the first place.

Treating the owner-constructor relationship as an employer-worker relationship detracts from the legislation’s effectiveness because it ignores the practical differences between these relationships and undercuts the distinct mechanisms by which they promote worker safety. In sum, the second branch of the employer definition is broad, but it does not turn an owner into the employer of workers hired or contracted for by a constructor.

Proceeding on the assumption that once a party meets the definition of employer, they are strictly liable for the breach of any regulatory provision through the operation of s. 25(1) (

c) and must rely on the due diligence defence conflates the definition of employer with the determination of the scope of an employer’s duties. On a proper construction of the scheme, it is essential to examine both the definition of the workplace parties and the duties that actually apply to them. An offence cannot be founded on the breach of a duty that does not apply to the accused. Once a workplace party is found to satisfy the relevant definition set out in s. 1(1) of the Act , it is necessary to then consider which duties actually applied to the party at the time of the alleged offence. The Act separately sets out the duties for each workplace party. Section 25(1)(

c) requires an employer to ensure compliance with all applicable regulatory measures. Where the Regulation expressly states to whom its measures apply, there will be no question as to whether they fall within the employer’s duty under s. 25(1) (c). Where however, a particular measure is silent concerning to whom it applies, the measure applies when it relates to work that the employer controlled and performed through their workers.

This relationship is established when the employer has authority over the performance of a task, usually because it is the portion of the work within the larger project that, whether alone or with other parties, they have been entrusted with performing through the workers they have employed or contracted for. To be sure, multiple parties can be jointly entrusted with a task, since different employers will often collaborate, and thus multiple employers can have an overlapping responsibility to fulfill the same measures.

A regulatory measure can apply to the work of multiple employers so long as it relates to each employer. The core question is: What work is an employer responsible for undertaking on the construction project? The Ministry should know whether the measure is actually related to the employer’s work before making the decision to charge that employer. Therefore, the regulatory measures apply when they present a nexus to the work which is under the employer’s control and performed through their workers.

Establishing this nexus between the measure and the employer is a binary, threshold question: either the measure applies because it is related to work which the employer has undertaken, or the measure does not apply because such a link is absent. It would be absurd to interpret s. 25(1)(

c) and the Regulation as obligating every employer at a construction project to ensure compliance with all measures contained within the Regulation. This would effectively mean that everyone who employs anyone is responsible for everything that anyone does. Protecting worker safety is of critical importance and it is far from clear that making every employer liable for the acts of all other employers in carrying out all regulatory obligations meaningfully improves worker safety. A measured and practical approach gives effect to the concept of overlapping responsibilities.

Since the workers’ activities under each employer’s control frequently overlap on complex construction projects, so too will the measures which apply to them under s. 25(1)(c). A measured and practical approach also fully operationalizes the belt and braces approach which aims to create meaningful protection in practice. Yet, if there is no relationship between the measure and the employer’s work, the employer cannot serve as an effective brace.

Imposing measures contained in the Regulation onto employers bearing no relationship to the work at hand adds an indefinite number of illusory braces: they provide a false sense of added safety but, in reality, only increase the legal jeopardy of unrelated workplace parties who could not have ensured compliance with those measures. Holding employers with no control liable does nothing to increase worker safety — it is this very lack of control which makes them unable to carry out the regulatory measures in the first place.

Additionally, limitless responsibilities lead to confusion and a lack of coordination on a construction project. If every employer is liable for everything and has duties towards unrelated parties, an individual employer’s sphere of responsibility becomes unclear. Safety issues could arise if multiple employers with no relationship to the duty or expertise in the area seek to enforce their own version of a particular safety procedure on other workers. Alternatively, unlimited duties can lead to neglect if each employer assumes that duties owed by all employers will have been fulfilled by someone else.

Prosecutorial discretion will not limit the potential for absurdity to occur. This effectively gives prosecutors unbounded discretion to define the proper scope of each employer’s duties by deciding who to charge, rendering the ultimate delineation of duties in the Act unpredictable and uneven from the accused’s perspective. Reliance on a promise that prosecutors would not charge employers for breaches of regulatory measures over which they had no control emphasizes this absurdity.

The availability of the due diligence defence at s. 66(3) also initially presents itself as an appealing solution, but there are multiple flaws with adopting an approach that pushes most of the analysis concerning an employer’s responsibility to the due diligence stage. From a methodological perspective, the offence and the defence should not be conflated. Judges should not abdicate the responsibility of arriving at a reasonable

interpretation of a duty merely because a defence exists or because doing so would improve administrative efficiency. A focus on the due diligence defence flips the structure of offences on its head: every employer is captured by the offence as soon as any regulatory measure is not met, and the accused must bear the burden of pulling themselves out of the ambit of the offence. Shifting much of the analysis on the contents of the duty and the nature of the employer’s work to the due diligence stage increases uncertainty in practice and ignores the reality of how the scheme operates on the ground.

If most of the employer’s obligations are outside of their control, they have no ability to even know whether the measures are being complied with or what they could be charged with at any moment. In contrast, requiring that a measure relates to an employer’s work provides employers with a greater understanding of their responsibilities and encourages them to take initiative to protect workers. In the instant case, because the City had hired quality control inspectors through a contract of employment, it satisfied the definition of employer under the first branch.

The City owes duties as the employer of these workers under the Act . However, by contracting with a constructor, it did not become the employer of the workers that the constructor retained. The owner-constructor contract reflects a distinct relationship contemplated in the Act that does not generally fall within the second branch of the employer definition in s. 1(1) . Consequently, the City is only the employer of its quality control inspectors.

In light of the conclusion that the City is an employer to the quality control inspectors, the applicability of the regulatory measures depends on whether the City controlled work being performed near public ways or controlled the operation of vehicles, machines and equipment. The trial judge however did not consider the applicability of the regulatory measures, nor did the provincial offences appeal court or the Court of Appeal.

Accordingly, the proper approach is to remit the matter to the provincial court to determine whether the relevant provisions of the Regulation related to the City and thereby fell within its duty under s. 25(1) (

c) of the Act . Per Côté J. (dissenting): The appeal should be allowed and the acquittals entered by the trial judge should be restored. Properly interpreted, the obligations prescribed by the Regulation were the responsibility of the constructor and/or the employers who performed the relevant construction work. The City had no involvement in or control over that work and was therefore not an employer at the construction project.

There is agreement with Rowe and O’Bonsawin JJ. that the definition of employer in s. 1(1) of the Act does not capture the construction-specific relationship between a project owner and its general contractor. A project owner who hires a constructor is not the employer of the constructor itself or its workers. An employer cannot evade its occupational health and safety responsibilities by hiring an independent contractor instead of entering a typical employment relationship. But it does not follow that an employer is responsible for the employees and independent contractors of other employers.

There is also substantial agreement with Rowe and O’Bonsawin JJ.’s

interpretation of the duties of employers under s. 25(1) (

c) of the Act , which must be read in context and together with the applicable Regulation. It would be absurd to interpret s. 25(1) (

c) literally to require each employer on a construction project to ensure compliance with all applicable regulations. On a construction project, while each employer is responsible for the health and safety of its own workers, the constructor is responsible for health and safety across the project. The belt and braces approach to occupational health and safety is not without reasonable limits and should not be interpreted in a manner that extends the reach of the Act beyond what was intended by the legislature.

To impose duties on employers that they cannot possibly fulfil does not further the aim and purpose of the Act , which is to promote worker safety. The position that workplaces will be safer if every employer is made responsible for every possible safety obligation has superficial appeal, but it also creates a clear disincentive for a municipal project owner to engage in quality control efforts. A municipal project owner is not an employer on the construction site merely because it employs quality control inspectors.

Holding every project owner strictly liable for all safety hazards it encountered in its quality control efforts — and which it did nothing to create — renders the quality control exception meaningless. It would no longer matter that owners do not become constructors by hiring quality control personnel. They would simply become employers who, in addition to constructors, have a strict duty to ensure compliance across the construction project. The due diligence defence only becomes relevant once the elements of the statutory offence have been established.

An employer’s ability to make out a potentially costly and burdensome defence is irrelevant to the proper

interpretation of who is an employer on a construction site and to the scope of its corresponding statutory duties. It does not prevent future harm to impose statutory liability on employers who have no connection to, or control over, the safety obligation in question. Where an employer on a construction site did have some measure of control over the safety obligation in question, the burden shifts to the employer to demonstrate that it took every precaution reasonable in the circumstances.

In a careful and thorough analysis, the trial judge in the instant case repeatedly rejected the Ministry’s position that the City or its inspectors exercised control over any construction work at the project. The trial judge properly found that the Ministry had not proved that the City acted as an employer on the construction site. Interpaving was both the constructor of the project and the employer of the road grader operator who fatally struck and killed a pedestrian. The City’s involvement in the project was limited to quality control and it was not responsible for the completion of any construction work.

The trial judge’s conclusions on the City’s lack of control at the project are findings of fact that deserve deference. The trial judge also correctly found that even if she was wrong in concluding that the City was not an employer on the construction site, the City took every precaution reasonable in the circumstances to ensure safety at the project. It would be an extravagant proposition to say that a municipal project owner becomes an employer of every person on a project by attending the project for the limited purpose of quality assurance.

To impose statutory liability on the City in these circumstances would be a regrettable departure from the established scheme of the Act . The City was not statutorily obligated to ensure compliance with the Regulation which applied only to the workplace parties involved in the actual construction work at the project site.

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British Columbia (Workers’ Compensation Appeal Tribunal),2018 SCC 22, [2018] 1 S.C.R. 635; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900;Ontario (Health and Long-Term Care, Land Ambulance Programs) v. Canadian Union of Public Employees, Local 2974.1, ; Willick v. Willick, (SCC), [1994] 3 S.C.R. 670; R. v. Brampton Brick Ltd. (2004), (ON CA),189 O.A.C. 44; Ontario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031; R. v. Halifax Port Authority, 2022NSPC 13; Director of Occupational Health and Safety v. Government of Yukon, William R. Cratty and P.S.

Sidhu Trucking Ltd., 2012YKSC 47; R. v. Gonder (1981), (YK TC), 62 C.C.C. (2d) 326; R. v. Sault Ste. Marie, (SCC), [1978]2 S.C.R. 1299; Stelco Inc. v. Ontario (Ministry of Labour), ; Ontario v. London Excavators & Trucking Ltd. (1998), (ON CA), 40 O.R. (3d) 32. By Côté J. (dissenting) Blue Mountain Resorts Ltd. v. Ontario (Ministry of Labour), 2013 ONCA 75, 114 O.R. (3d) 321; R. v. BondfieldConstruction Co., 2022 ONCA 302; R. v. K.B. Home Insulation Ltd., [2008] O.J. No. 6019 (QL), 2008 CarswellOnt 10891 (WL); R. v.Bradsil 1967 Ltd., [1994] O.J. No. 837 (QL), 1994 CarswellOnt 4450 (WL); R. v.

Grant Forest Products Inc. (2002), 98 C.R.R. (2d)149; R. v. Wyssen (1992), (ON CA), 10 O.R. (3d) 193; Canada Post Corp. v. Canadian Union of Postal Workers,2019 SCC 67, [2019] 4 S.C.R. 900; Ontario (Ministry of Labour) v. Nor Eng Construction & Engineering Inc., 2008 ONCJ 296; R. v.Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154. Statutes and Regulations Cited Construction Projects, O. Reg. 213/91, ss. 7.1, 15(1), 17(1), 21, 65, 67(4), 80, 104(3), 126 to 136.0.1, 140(1), 160(1), 207 to 210, 309 to316.

Construction Safety Act, 1973 , S.O. 1973, c. 47, s. 1(h). Industrial Safety Act, 1964 , S.O. 1964, c. 45. Legislation Act, 2006 , S.O. 2006, c. 21, Sch. F, s. 64(1) . Occupational Health and Safety Act , R.S.O. 1990, c. O.1, ss. 1(1) “constructor”, “employer”, “project”, “worker”, “workplace”, (3),

Part I, II, 9,

Part III, 23, 25 to 26, 27(1), 28(1)(b), (d), 29 to 30, 32.0.1 to 32.0.8, Parts IV to VII, 50,

Part VIII, IX, 66(1), (2), (3). Authors Cited Ball, Stacey Reginald. Canadian Employment Law . Toronto: Thomson Reuters, 1996 (loose-leaf updated September 2023, release 4). Cliche, Bernard, et autres. Droit de la santé et de la sécurité au travail: La loi et la jurisprudence commentées , 3 e éd. Montréal: Yvon Blais, 2018. Edwards, Cheryl A., and Ryan J. Conlin. Employer Liability For Contractors Under The Ontario Occupational Health and Safety Act , 2nd ed. Toronto: Thomson Carswell, 2007.

Fidler, Richard. “The Occupational Health and Safety Act and the Internal Responsibility System” (1986), 24 Osgoode Hall L.J. 315. Johnstone, Richard, Claire Mayhew and Michael Quinlan. “Outsourcing Risk? The Regulation of Occupational Health and Safety Where Subcontractors Are Employed” (2001), 22 Comp. Lab. L. & Pol’y J. 351. McKechnie, Dave. “Occupational Health and Safety in Construction Law”, in Leonard Ricchetti and Timothy J. Murphy, Construction Law in Canada . Markham, Ont.: LexisNexis, 2010, 209. Ontario. Report of the Royal Commission on the Health and Safety of Workers in Mines . Toronto, 1976.

Ontario. Legislative Assembly. Legislature of Ontario Debates: Official Report (Hansard) — Daily Edition , No. 151, 2nd Sess., 31st Parl., December 14, 1978, p. 6187. Ontario. Ministry of Labour, Immigration, Training and Skills Development. Constructor guideline , February 11, 2022 (online: https://www.ontario.ca/page/constructor-guideline; archived version: https://www.scc-csc.ca/cso-dce/2023SCC-CSC28_1_eng.pdf ). Ontario. Ministry of Transportation. Ontario Traffic Manual: Book 7 — Temporary Conditions . St. Catharines, Ont., 2022. Sullivan, Ruth. Statutory

Interpretation , 3rd ed. Toronto: Irwin Law, 2016. Sullivan, Ruth. The Construction of Statutes , 7th ed. Toronto: LexisNexis, 2022. Swaigen, John, and Susan McRory. Regulatory Offences In Canada: Liability and Defences , 2nd ed. Toronto: Carswell, 2018. APPEAL from a judgment of the Ontario Court of Appeal (Fairburn A.C.J.O. and Watt and Huscroft JJ.A.), 2021 ONCA 252 , 15 M.P.L.R. (6th) 161, [2021] O.J. No. 2113 (QL), 2021 CarswellOnt 5697 (WL), setting aside a decision of Poupore J., 2019 ONSC 3285 , 88 M.P.L.R. (5th) 158, [2019] O.J.

No. 2957 (QL), 2019 CarswellOnt 8916 (WL), which affirmed the acquittals entered by Lische J., and remitting the matter to the Ontario Superior Court of Justice. Appeal dismissed on equal division, Karakatsanis, Côté, Rowe and O’Bonsawin JJ. dissenting. Ryan J. Conlin and Jeremy Schwartz , for the appellant. David McCaskill , Giuseppe Ferraro and William Robinson , for the respondent. Kevin MacNeill and Jean-Simon Schoenholz , for the intervener the Retail Council of Canada. Jonathan C.

Lisus , Zain Naqi and John Carlo Mastrangelo , for the interveners the Regional Municipality of York, the Regional Municipality of Peel, the Regional Municipality of Durham, the Regional Municipality of Halton, the Regional Municipality of Waterloo and the Regional Municipality of Niagara. Ben Parkin and Johanna Goosen , for the intervener the Workers’ Compensation Board of British Columbia. The reasons of Wagner C.J. and Martin, Kasirer and Jamal JJ. were delivered by Martin J. — I. Introduction [ 1 ] This appeal arises from a fatal accident and concerns the proper

interpretation of Ontario’s Occupational Health and Safety Act , R.S.O. 1990, c. O.1 (“ Act ”). The Corporation of the City of Greater Sudbury contracted with Interpaving Limited to act as constructor to repair a downtown water main. An Interpaving employee struck and killed a pedestrian when driving a road grader, in reverse, through an intersection. Contrary to the accompanying regulation, Construction Projects , O. Reg. 213/91 (“Regulation”), no fence was placed between the construction project workplace and the public intersection, and no signaller was assisting the Interpaving worker (see ss. 65 and 104(3)).

In separate proceedings, Interpaving was tried and convicted for breaching the duty of employers under

s. 25(1)(

c) of the Act to “ensure that . . . the measures and procedures prescribed [in the Regulation] are carried out in the workplace”. [2] The legal issue on this appeal concerns the statutory liability, if any, of the City as an employer for breaching thissame 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 constructionproject and acknowledged that it sent quality control inspectors to the project, but denied that it was an employer, arguing that it lackedcontrol over the repair work and had delegated control to Interpaving. [3] The trial judge acquitted the City because Interpaving, not the City, had direct control over the workers and theintersection 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 didnot 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 courtjudge.

The court affirmed and applied the definition of “employer” established in its leading 1992 decision, R. v. Wyssen, (ON CA), 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 duediligence 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 todetermine what role control plays in regulatory prosecutions against employers under s. 25(1)(

c) of the Act. [4] 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 provethat the City breached its obligations as an employer under s. 25(1)(c). [5] In s. 1(1), the Act defines “employer” broadly — without any reference to control — and charges all employers touphold several statutory duties. There is simply no reason to embed a control requirement into the definition of an “employer” or graft acontrol requirement onto s. 25(1)(

c) when the legislature deliberately chose not to do so. Indeed, diminishing an employer’s duties byreading in a control requirement under either or both provisions would thwart the purpose of this remedial public welfare legislation. ThisAct is specifically designed to expand historically narrow safeguards and seeks to promote and maintain workplace health and safety byexpressly imposing concurrent, overlapping, broad, strict, and non-delegable duties on multiple workplace participants in what is knownas the “belt and braces” strategy. The

interpretation advanced by the City not only defeats this intention, but would also createundesirable and unnecessary uncertainty and jeopardize efficient administration of the Act’s strict liability offences. Instead, control isproperly considered in deciding whether an employer who has breached the Act can nevertheless defend on the basis that it acted withdue diligence.

It is open to an accused to prove that its lack of control suggests that it took all reasonable steps in the circumstances. [6] 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 provincialoffences appeal court. II. Analysis [7] My analysis proceeds in three parts. I first provide an overview of the Act. Second, I explain why the Ministry neednot prove control in a prosecution against an employer under s. 25(1)(

c) of the Act. Third, I comment on the role of control in relation tothe due diligence defence under s. 66(3)(b). A. Overview of the Occupational Health and Safety Act [8] The Act seeks to maintain and promote a reasonable level of protection for the health and safety of workers in andabout their workplace. As set out in Ontario (Ministry of Labour) v.

Hamilton (City) (2002), (ON CA), 58 O.R. (3d)37 (C.A.), at para. 16: The [Act] is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers.When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed topromote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of thelegislative scheme. Narrow or technical

interpretations that would interfere with or frustrate the attainment of the legislature’s publicwelfare objectives are to be avoided. [9] The Act’s public welfare purpose is confirmed by its history. Following the 1976 Report of the Royal Commissionon the Health and Safety of Workers in Mines (“Ham Commission Report”), the Ontario government engaged in substantial legislativereform. It repealed various predecessor statutes that only provided workplace protection to employees.

When the Act was introduced in1978, it expanded the definition of “employer” to extend protection to independent contractors, reflecting “the clear intention of thelegislature to make employers responsible for ensuring safety in the workplace” (see Wyssen, at p. 199). [10] The Act fulfills its public welfare purpose by allocating various occupational health and safety duties among variousclasses of workplace actors, including constructors, employers, and owners (see ss. 23, 25 and 29, respectively).

These duties are oftenconcurrent and overlapping: several different actors may be responsible for the same protective functions and measures. This is known asthe “belt and braces” approach to occupational health and safety: . . . the Act and Regulations use more than one method to ensure workers are protected. So, if the “belt” does not work to safeguard aworker, the backup system of the “braces” might, or vice versa.

If all workplace parties are required to exercise due diligence, the failureof one party to exercise the requisite due diligence might be compensated for by the diligence of one of the other workplace parties. Thepurpose is to leave little to chance and to make protection of workers an overlapping responsibility.

(Ontario (Minister of Labour) v. Enbridge Gas Distribution Inc., 2010 ONSC 2013, 261 O.A.C. 27, at para. 24) [11] Under the “belt and braces” approach, where multiple workplace entities fail to safeguard health and safety, theycannot point to others’ failures as an excuse for their own; each workplace participant must ensure that the workplace is safe (R. v.J. Stoller Construction Ltd., 1986 CarswellOnt 3654 (WL) (Prov. Ct.), at para. 22; R. v. Stelco Inc. (1989), 1 C.O.H.S.C. 76 (Ont. Prov.Ct.), at pp. 83-84; R. v. Structform International Ltd., [1992] O.J. No. 1711 (QL), 1992 CarswellOnt 2751 (WL) (C.J. (Gen.

Div.)), atpara. 17 (WL); R. v. Thomas G. Fuller & Sons Ltd., 2008 CarswellOnt 9276 (WL) (C.J.), at para. 54; R. v. Cox Construction Ltd., 2008CarswellOnt 9540 (WL) (C.J.), at paras. 189-92; R. v. Saskatchewan Power Corp., 2016 SKPC 2, at para. 35 , citing Ontario(Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769, 87 O.R. (3d) 161).

The Ham Commission Report advocated for an “internalresponsibility system” whereby all workplace participants share responsibility for workplace safety, highlighted that “a safe workplaceinvolves all participants working together in a shared responsibility system”, and recognized “a positive and proactive duty on allparticipants” (R. v. Campbell, [2004] O.J. No. 129 (QL), 2004 CarswellOnt 116 (WL) (C.J.), at paras. 28-29 and 65). B. What the Ministry is Required to Establish [12] Section 66(1)(

a) of the Act makes it an offence for a workplace actor to breach one of the Act’s obligations, includings. 25(1)(c), which is a strict liability offence (R. v. Timminco Ltd. (2001), (ON CA), 54 O.R. (3d) 21 (C.A.), atpara. 23). As such, when s. 25(1)(

c) is the subject of the charge, the Ministry only needs to prove the actus reus beyond a reasonabledoubt to ground a conviction; the Ministry does not need to prove mens rea. To prove the actus reus, the Ministry must prove thatworkplace participant was an employer under s. 1(1) and that there was a breach because the employer did not ensure that the prescribedmeasures and procedures were carried out in the workplace. [13] My colleagues Rowe and O’Bonsawin JJ. and I agree that the definition of “employer” is a free-standing and distinctquestion from the question of the scope of the duty under s. 25(1)(c) (see para. 75). Though the

interpretation of “employer” in s. 1(1)and of the duty in s. 25(1)(

c) are related insofar as the provisions provide context for one another and are governed by the same statutorypurpose, these two questions must remain analytically distinct. Additionally, my colleagues Rowe and O’Bonsawin JJ. and I agree thatcontrol should not be embedded into the definition of “employer” (paras. 93 and 97). Where we part ways is the role of control inrelation to the employer’s duty in s. 25(1)(c).

(1) Proving the City Is an “Employer” Under Section 1(1) of the Act Does Not Require the Ministry to Prove Control [14] The Act defines an employer as a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor orsubcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor,contractor or subcontractor to perform work or supply services; [15] The meaning of “employer” was thoroughly canvassed and authoritatively determined in Wyssen (see Ontario v.London Excavators & Trucking Ltd. (1998), (ON CA), 40 O.R. (3d) 32 (C.A.), at p. 40; Ontario (Ministry of Labour)v.

Pioneer Construction Inc. (2006), (ON CA), 79 O.R. (3d) 641 (C.A.), at para. 19; Dofasco Inc., at para. 9;Ontario (Ministry of Labour) v. United Independent Operators Ltd., 2011 ONCA 33, 104 O.R. (3d) 1, at para. 38). [16] In that 1992 decision, the Court of Appeal for Ontario eschewed, not embedded, a control requirement for whoqualifies as an employer. In doing so, the court endorsed the “belt and braces” approach of placing overlapping responsibilities on allworkplace actors, regardless of their level of control, in order to best protect worker safety.

Blair J.A., for the majority, considered thetext, context and purpose of s. 1(1) in concluding that the definition of “employer” is broad, unconnected to control, and encompassestwo types of relationships: (1) where a person employs workers; and (2) where a person contracts for the services of workers (p. 196). [17] It is clear from the text of the definition of “employer” that control is not an element that the Ministry must prove toestablish that an accused is subject to the duties of an employer. First, the definition contains no reference to control.

It is simply notthere when it could have been, if that was the intention of the legislature. This Court must give effect to what the legislature included inthe definition of “employer”. To conjecture and then grant priority to what the legislature chose not to include, by adding an additionalelement into the definition, “would be tantamount to amending [the Act], which is a legislative and not a judicial function” (R. v.McIntosh, (SCC), [1995] 1 S.C.R. 686, at para. 26 (emphasis deleted); see also R. v.

Hinchey, (SCC),[1996] 3 S.C.R. 1128, at para. 8). [18] Second, at common law, a person’s relationship with an independent contractor is typically characterized by a lack ofcontrol on the part of that person over the contractor (671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2S.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 anemployer under the Act even where they lack control over the worker or the workplace. Wyssen’s

interpretation applies to all employeesand workplaces, including those in the construction industry. [19] 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 definitionthe traditional common law control condition that distinguishes employment and independent contractor relationships.

Incorporatingcontrol into the s. 1(1) definition would therefore reintroduce a characteristic of the former regime, which was abolished because it failedto adequately promote and protect workplace safety. [20] 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 aproject” involves assuming control over it (Ontario (Ministry of Labour) v. Reid & DeLeye Contractors Ltd., 2011 ONCJ 472, at para. 42).

The absence of a control requirement for employers thus reflects an intentional legislative choice that must be respected. [21] Accordingly, authorities that have read a control requirement into “employer” are irreconcilable with Wyssen,inconsistent with the text, context and purpose of the Act, and should not be followed (see, e.g., Ontario (Ministry of Labour) v. Nor EngConstruction & Engineering Inc., 2008 ONCJ 296, at para. 88 ; R. v. Marina Harbour Systems, (Ont.S.C.J.), at paras. 27-30; R. v.

EFCO Canada Co., 2010 ONCJ 421, at paras. 59-60). [22] It follows from the straightforward application of Wyssen, as well as the text, context and purpose of s. 1(1), that theCity was an employer under both branches of the Act’s definition. I agree with the Court of Appeal that it was an employer of theinspectors, whom it employed directly and dispatched to the construction project. Further, under the second branch, the City was anemployer of Interpaving, with whom it contracted to undertake the construction project.

Because the definition of “employer”encompasses employer-independent contractor relationships, an owner who contracts with a constructor is an employer under s. 1(1) ofthe Act. The text of the “employer” definition captures a person who contracts for the services of workers, and “worker” is defined asincluding “[a] person who performs work or supplies services for monetary compensation”. This encompasses constructors, who performwork and supply services for monetary compensation.

Thus, the reference to contracting for the services of workers in the “employer”definition clearly captures contracting with constructors.

(2) Proving the City Breached Section 25(1)(

c) of the Act [23] The duties imposed by the Act are numerous, varied and stated in precise, purposeful ways. In some cases, they arelinked to a particular workplace or project (see, e.g., ss. 23(1) and 25(1)(c)) or to the workers (see, e.g., ss. 23(1)(

c) and 25(2)(a)). Inother cases, they are more broadly stated (see, e.g., s. 25(1)(a)). The relevant obligation in this case is tied to the workplace. [24] The City is alleged to have breached s. 25(1)(c), which requires that an employer “shall ensure that . . . the measuresand procedures prescribed are carried out in the workplace”. This obligation applies to employers across all sectors. For employers in theconstruction industry, the relevant measures and procedures are prescribed in the Regulation.

A review of s. 25(1)(c)’s text, context, andpurpose reveals that control on the part of the accused is not an element of this duty. The Ministry does not need to prove that the Cityhad control over the Interpaving workers or the workplace as part of the actus reus of the s. 25(1)(

c) offence. (

a) Text [25] The plain text of s. 25(1)(

c) does not limit this duty to workers or workplaces over which the employer has control.The legislature could have written in an internal limitation akin to a control requirement in relation to this duty but chose not to. This isall the more important because, in contrast to s. 25(1)(c), it did precisely that in s. 25(2)(h), where the employer’s obligation to takeprecautions is limited to those precautions “reasonable in the circumstances”.

That the legislature did not limit s. 25(1)(c), whether byreference to a control requirement or otherwise, reflects an intentional choice that this Court should not disturb. [26] By comparison, other statutes express a different legislative choice. For example, in Canada Post Corp. v. CanadianUnion of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, the text of the duty at issue required the employer to inspect “every workplace controlled by the employer” (para. 9, citing s. 125(1) of the Canada Labour Code, R.S.C. 1985, c. L-2).

Thus, Parliament explicitlydecided that the employer’s duty should be triggered by the employer’s control over the workplace. Similarly, in R. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299, the foundational case setting out the structure of regulatory offences, the relevant offencewas discharging or depositing, or causing or permitting the discharge or deposit of, material of any kind into a water course. This Courtinterpreted the actus reus of the offence of “causing” the discharge of material as incorporating a control element (p. 1329). No similarlanguage can be found in s. 25(1)(c).

This indicates that a different legislative choice was made by the Ontario legislature. [27] The language that the legislature chose to use in s. 25(1)(c) — namely, the use of the word “ensure” — also speaks toand supports the broad nature of this duty. In Wyssen, Blair J.A. noted that the dictionary definition of “ensure”, as it appeared in thepredecessor to s. 25(1)(c), is to “make certain” (p. 198).

This duty “puts an ‘employer’ virtually in the position of an insurer who mustmake certain that the prescribed regulations for safety in the workplace have been complied with before work is undertaken by eitheremployees or independent contractors” (p. 198). This “sweeping”, “undeniably strict” and “non-delegable” duty “cannot be evaded bycontracting out performance of the work to independent contractors” (p. 198). [28] The strict nature of this duty also led the Court of Appeal to reject reading a mens rea requirement into s. 25(1)(c)(Timminco, at paras. 22-26).

Clear language, like the words “wilfully”, “with intent”, “knowingly” or “intentionally”, would benecessary to view s. 25(1)(

c) as a mens rea offence (Timminco, at para. 26). That the legislature instead used the word “ensure” “suggeststhat [it] intended to impose a strict duty on the employer to make certain that the prescribed safety standards were complied with at allmaterial times” (Timminco, at para. 26). For the same reasons that reading in a mens rea element would be inappropriate, a controlrequirement cannot be read into s. 25(1)(c). [29] This conclusion about the text of s. 25(1)(

c) is further supported by this Court’s reasoning in West Fraser Mills Ltd. v.British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635, which considered the

interpretation of“employer” in s. 196(1) of British Columbia’s Workers Compensation Act, R.S.B.C. 1996, c. 492. The workplace owner, West FraserMills, hired an independent contractor, and one of the contractor’s employees was killed in a workplace accident. The Workers’Compensation Board of British Columbia determined that West Fraser Mills had breached its regulatory duty as an owner unders. 26.2(1) of the Occupational Health and Safety Regulation, B.C.

Reg. 296/97, by failing to ensure that “all activities of the forestryoperation are both planned and conducted in a manner consistent with this Regulation and with safe work practices acceptable to theBoard”. It then imposed a penalty under s. 196(1) of the enabling statute, which permits the Board to penalize an employer.

West FraserMills was seen as an employer, in addition to being an owner, because it employed individuals to carry out the duties imposed bys. 26.2(1) of the regulation in relation to the worksite in question. [30] On appeal, this Court determined that the Tribunal’s decision was not patently unreasonable (para. 32). The Tribunal

had broadly interpreted West Fraser Mills’ duties as an employer under s. 196(1) as relating to the worksite at issue. An “actual connection to the specific accident at issue” existed between West Fraser Mills as the employer and the “ worksite that led to the accident and injury ”, even though there was no “employment relationship with the person injured ” (para. 39 (emphasis in original)). This

interpretation aligned with s. 196(1)’s text, which “focus[ed] not on the specific relationship between the impugned employer and the victim of a workplace accident, but on the relationship between the employer and the worksite that led to the accident and injury” (para. 45). [ 31 ] As with s. 196(1) of the British Columbia statute, the text of s. 25(1)(

c) of the Ontario Act concerns occupational health and safety measures present at a physical workplace location to which an employer may be connected by virtue of sending employees there or contracting with independent contractors to perform work there. It states that the measures prescribed in the Regulation must be followed at that location. It does not focus on the nature of the employer’s relationship with any particular individual. Crucially, it does not focus on whether that relationship is characterized by control. Because of its language, s. 25(1)(

c) cannot be read as applying only when an employer has a degree of control over someone. (

b) Context [ 32 ] 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). [ 33 ] 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. [ 34 ] 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. [ 35 ] Though my colleagues Rowe and O’Bonsawin JJ. and I agree that the City is an employer under the Act and that control is not relevant to the definition of “employer”, we diverge in our

interpretation of s. 25(1)(c). They would read a control requirement into this duty, such that it only applies to employers where there is a “functional relationship between the measure and the employer” (para. 106), which they describe as “a nexus to the work which is under the employer’s control and performed through their workers” (para. 155). Incorporating control by requiring a “nexus” between an employer and activities under the employer’s control is inconsistent with the text, context, and purpose of the

section and with Wyssen . While the

interpretation of ss. 1(1) and 25(1)(

c) raises separate questions, these sections should be read harmoniously as they are nonetheless related. [ 36 ] In Wyssen , Blair J.A. observed that the breadth of the employer’s duties under what is now s. 25(1)(

c) corroborated the breadth of the definition of “employer” ( p. 198). The broad nature of one goes hand in hand with the broad nature of the other. Yet, while my colleagues purport to follow Wyssen by leaving the definition broad, in fact they depart from Wyssen by narrowing the employer’s duties. In doing so, they introduce an internal inconsistency into the Act by pairing a broad definition of “employer” with a narrow

interpretation of s. 25(1)(c), rather than finding harmony between these provisions and treating them as mutually reinforcing as the legislature intended. Wyssen observed that the legislature expanded the definition of “employer” to capture employer-independent contractor relationships that are not characterized by control; reading control into s. 25(1)(

c) thus creates a dissonance in the Act that undermines legislative intention by reintroducing a previously discarded control element into the new widely worded public welfare legislation. [ 37 ] 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. (

c) Purpose [ 38 ] 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. [ 39 ] 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. [ 40 ] 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 isbuilt into the Act’s scheme (United Independent Operators, at para. 55, citing the Ministry’s Guide to The Occupational Health andSafety Act, 1978, at p. 28; see also West Fraser Mills, at para. 43). The Act also incentivizes such behaviour: where actors fail tocooperate and communicate, it is less likely that they will be able to successfully mount a due diligence defence.

For example, in LondonExcavators, a subcontractor on a construction project was unable to establish the due diligence defence because of its unreasonablereliance on a general contractor’s miscommunication about the location of a hazard (p. 40). [41] However, reading in a control requirement could defeat the Act’s public welfare purpose of creating overlappingresponsibility. Often, workplace actors will have varying degrees of control over a workplace. Some will have more control than otherswithout having exclusive control (Director of Occupational Health and Safety v. Government of Yukon, William R.

Cratty and P.S. SidhuTrucking Ltd., 2012 YKSC 47, at para. 69 ). This variance matters. Incorporating a control element into s. 25(1)(

c) wouldessentially give workplace actors a tool for frustrating regulatory prosecutions at the outset, before the burden shifts to the accused todemonstrate due diligence under s. 66(3)(b), by arguing that they had no control over a hazard because other parties had greatercomparative control over that hazard. We cannot ignore this practical, on-the-ground reality, which, if permitted to prevail, would not beconducive to promoting workplace safety. Rather, it would undermine the “belt and braces” approach by turning prosecutions under theAct into a “finger pointing” exercise.

As Gotlib J. explained in Structform, at para. 17: The case law is clear that one employer cannot point a finger at another employer who might be closer to the situation. Every employerhas a duty to see that the workplace is safe. And in the complexity of construction it is important that every employer use knowledge, duediligence, etc., to ensure that the workplace is safe. An employer is not entitled to say it is someone else’s responsibility. [42] The point is not that it is prohibitively difficult for a court to ascertain whether control exists or to even assesscomparative degrees of control.

The point is that situating the assessment of control under the Ministry’s burden to prove the s. 25(1)(c)offence is incongruous with the Act’s public welfare objectives. The focus at the breach stage would move from safety, where itbelongs, to parsing who actually controlled what. Creating a control requirement under s. 25(1)(

c) is impractical as it is the employer, notthe Ministry, who has the best knowledge and evidence about their level of control (Sault Ste. Marie, at p. 1325). It is also inefficient asrequiring the Ministry to prove control defeats the objective of achieving administrative expediency through the use of strict liabilityregulatory offences (Sault Ste. Marie, at p. 1311).

These problems are precisely what led the Court of Appeal to reject a mens rearequirement under s. 25(1)(c) (Timminco, at paras. 24-26). [43] It is unnecessarily duplicative to situate an inquiry into the accused’s degree of control under both the Ministry’sburden and the accused’s burden of establishing due diligence. Even where the language of an offence in a public welfare statute makescontrol an explicit condition, “it is sometimes difficult to maintain the distinction between the actus reus and the defence of duediligence” (R. v. Dan Gamache Trucking Inc., 2005 BCSC 1487, 23 M.V.R. (5th) 305, at para. 13).

Far from clarifying the role ofcontrol in prosecutions under the Act, actively reading it into an offence like s. 25(1)(c), whose text makes no mention of control, invitesfurther confusion about the proper place of control and what analytical differences there are between the Ministry’s burden to provecontrol and the accused’s burden to prove a lack of control. Introducing this additional complexity into proceedings under the Actundercuts the goal of administrative efficiency.

By contrast, considering control only under due diligence, where its relevance is entirelyuncontroversial, indeed common, offers much-needed clarity and predictability. I return to the due diligence defence below. [44] Finally, it advances the Act’s purpose to impose an employer’s duties on the owner of a construction project even ifthat owner has divested control to a constructor. My colleagues Rowe and O’Bonsawin JJ. argue that the Act intentionally leaves ownerswho hire constructors with limited responsibilities (paras. 100-102 and 119-25).

But, while s. 29(1) imposes duties on owners ofworkplaces that are not projects, this provision does not suggest that project owners are absolved of statutory duties if they devolvecontrol to a constructor. These duties simply do not apply to project owners; however, project owner duties set out in s. 30 do apply to theproject owner regardless of whether they hire a constructor. Moreover, a constructor under s. 1(1) is defined as including “an owner whoundertakes all or part of a project by himself”.

It is thus not the case that on every construction project an independent contractor is theconstructor with overall safety responsibility; the constructor may simply be the owner, if the owner undertakes a project alone. [45] Most importantly, even where an owner gives up control to a constructor, that same owner can have duties as anemployer that may at times overlap with the constructor’s duties. While s. 1(3) prevents an owner who sends inspectors to a worksitefrom becoming a constructor, it does not prevent the owner from being an employer.

And, there is “a connection between increasedremedies against owners who hold duties as employers for given workplaces and increased occupational health and safety. The generalscheme of the Act is to hold both owners and employers responsible in an overlapping and cooperative way for ensuring worksite safety”(West Fraser Mills, at para. 43).

This conclusion does not undermine the fact that the Act places overall authority with a constructor.Indeed, guidelines published by the Ministry provide that, even though a constructor is the party with the greatest control over aconstruction project, “[h]ealth and safety at a project are a shared responsibility [such that] each employer at a project has significantresponsibilities for the health and safety of their workers” (Constructor guideline, February 11, 2022 (online)).

Occupational health andsafety legislation does not create distinct “silos of responsibility” for different actors, nor for different sectors or industries (West FraserMills, at para. 15), and this sharing of responsibilities is simply another manifestation of the “belt and braces” approach. (

d) The City Breached Its Duties as an Employer [46] As an employer of the inspectors and of Interpaving, the City was required by s. 25(1)(

c) of the Act to ensure that“the measures and procedures prescribed [were] carried out in the workplace”. This included ensuring compliance with ss. 65 and 104(3)of the Regulation. On the date of the pedestrian’s death, the measures required by these provisions — a fence between the constructionwork and the public way, and signallers — were not carried out in the workplace. Thus, the City, as employer, committed the offenceunder s. 25(1)(

c) and its degree of control over the workplace or the workers is not relevant to this finding. [47] Having determined that the City was in breach of the Act, I turn to the due diligence defence. C. The Defence’s Burden: Proving Due Diligence

[48] Once the Ministry establishes a breach of the employer’s duty under s. 25(1)(c), the burden shifts to the accused toprove, on a balance of probabilities, that “every precaution reasonable in the circumstances” was taken pursuant to s. 66(3)(b) (seeTimminco, at paras. 22-26; see also Sault Ste. Marie, at pp. 1324-25). I note that the common law defence of due diligence also remainsavailable for strict liability offences under the Act that are not listed in s. 66(3) (see R. v. Bradsil 1967 Ltd., [1994] O.J. No. 837 (QL),1994 CarswellOnt 4450 (WL) (C.J. (Prov. Div.)), at para. 16, citing R. v.

Cancoil Thermal Corp. and Parkinson (1986), (ON CA), 27 C.C.C. (3d) 295 (Ont. C.A.)). It is therefore open to the City to escape liability by proving that it exercised duediligence. I begin by explaining why control should only be considered at this stage of the analysis, before turning to how control oughtto be considered.

(1) An Employer’s Control Should Be Considered Only as Part of the Due Diligence Defence [49] Considering control at the due diligence stage respects the text, context and purpose of the Act and best upholds itspurpose of promoting workplace safety. Though a person convicted under s. 25(1)(

c) of the Act may be liable to fines and/orimprisonment (s. 66(1) and (2)), a breach of s. 25(1)(

c) is not a criminal offence, but rather a strict liability regulatory offence. Its goal isnot to “condemn and punish past, inherently wrongful conduct”, but to “preven[t] . . . future harm through the enforcement of minimumstandards of conduct and care” (R. v. Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154, at p. 219; see alsoWilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300, at para. 33; La Souveraine,Compagnie d’assurance générale v. Autorité des marchés financiers, 2013 SCC 63, [2013] 3 S.C.R. 756, at para. 90).

The legislature’schoice to impose liability upon an employer, even absent a connection to or control over an activity, was driven not by a desire to expressopprobrium of inherently blameworthy conduct but by a desire to modify behaviour and reduce the risk of workplace injury. The natureand purpose of strict liability offences means that stigma will not attach to employers who are found to have breached s. 25(1)(

c) of theAct. Rather, shifting the burden to the employer to establish a due diligence defence incentivizes employers to take all steps within theircontrol to achieve workplace safety and prevent future harm so that they may avail themselves of the defence should harm occur. [50] That an employer’s degree of control over other parties in the workplace is relevant to its due diligence defence alsoanswers fairness concerns about imposing liability on an employer for a breach caused by another party. Considering control under duediligence means employers l

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