When is an Employer not an Employer?

Written on behalf of Peter McSherry

In a recent blog post we explored the concept that, specifically in relation to workers’ compensation laws, there are circumstances in which applicable legislation operates in a manner that does not consider a worker to be an “employee” for certain purposes. In this blog, we turn that concept around and explore the legal instances in which it may be determined that the entity that various workers provide services for is not an “employer.”

City Hires a Contractor to Complete Repairs; Bystander is Killed

In the recent Supreme Court of Canada decision R v Greater Sudbury, the Court was tasked with evaluating whether the entity in question could be classified as an “employer” at the time the events in question occurred. In this matter, the City of Sudbury (the “City”), which bears responsibility for maintenance and repair of municipal roadways and services, contracted with Interpaving Limited (“Interpaving”) to provide repairs to a water main located in the downtown area. While the repairs were ongoing, an employee of Interpaving struck and killed a pedestrian while driving a road grader, in reverse, through an intersection. As a result of this incident, the Ministry of the Attorney General charged both Interpaving and the City of Sudbury under section 25(1)(c) of Ontario’s Occupational Health and Safety Act (also referred to as the “OHSA”) with failing to satisfy certain safety requirements demanded under the accompanying regulation, the Construction Projects Regulation.

Interpaving pleaded guilty to all charges before trial.

City Acknowledges it was Project Owner but Denies it was Employer

The City acknowledged that it was the owner of the construction project and that as such it had oversight of the project, as the City had regularly sent quality control inspectors to assess the project and ensure that Interpaving was complying with its contract. However, the City denied that it was the actual employer for purposes of charges under the Occupational Health and Safety Act. The City took the position that because it lacked control over the repair work being undertaken at the accident site (as such responsibility had been delegated to Interpaving through its contract with the City) that Interpaving was the sole employer at the time of the accident, and the City of Sudbury could not also be considered to be an employer.

The Ontario provincial court originally tasked with assessing this case acquitted the City of all charges, finding that the City’s argument that Inverpaving had direct control over the workers and the work site and thus was properly named the sole employer for purposes of charges under the Occupational Health and Safety Act. Although the provincial offences appeal court upheld that decision, the Ontario Court of Appeal overturned it, finding that the City was in fact liable under Occupational Health and Safety Act as an employer.

The City appealed the decision to the Supreme Court of Canada.

Supreme Court of Canada Weighs in On Determination of Employer Status

The Supreme Court of Canada began by noting that at the root of this decision was the proper interpretation of Ontario’s Occupational Health and Safety Act, particularly sections 25(1)(c) and 1(1) thereof. Section 25(1)(c) was relevant because it is the section under which the City of Sudbury had been charged, and it specifically made reference to the responsibility of “the employer.” Section 1(1) was important because it contained the definition of the word “employer” which is applicable to all other sections of the Occupational Health and Safety Act. Under section 1(1), an entity or person is defined to be an “employer” for purposes of the Occupational Health and Safety Act as “a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor 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.” The City of Sudbury, as the owner of the project and the party with ultimate control over all things project-related, including hiring of all subcontractors, and also as the main contractor on the project, certainly satisfied this definition of “employer.”

The Supreme Court also took note of the purpose of occupational health and safety legislation more broadly, stating that the Occupational Health and Safety 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.” In other words, this legislation encourages courts to find that there were multiple employers in any given situation in an effort to provide the highest possible level of protection to vulnerable employees.

City Found to be Employer at the Time of the Accident

Given these findings with respect to the purpose of occupational health and safety legislation, the Supreme Court found that to conclude that the City was not, in fact, an employer in these defined circumstances would “not only defeat this intention, but would also create undesirable and unnecessary uncertainty and jeopardize efficient administration of the Act’s strict liability offences.”

Ultimately, a majority of the Supreme Court was satisfied that the City of Sudbury was indeed considered to be an employer on the date in question when the incident in question occurred. As these findings accorded with those of the Court of Appeal, the decision of the Court of Appeal, in which it was found that the City of Sudbury had been an “employer” for purposes of charges against it under section 25(1)(c) of the Occupational Health and Safety Act, was allowed to stand.

Contact the Law Offices of Peter A. McSherry Regarding Your Employment Law Matter

Whether you have been wrongfully or constructively dismissed from your employment, are engaged in a dispute with your employer with respect to payment of overtime or bonuses, or have been subjected to unfair or disproportionate discipline the law offices of employment lawyer Peter A. McSherry can help.

From our offices in Guelph, our employment law team is proud to provide Ontarians from all over the province with thoughtful, capable, and compassionate service to assist in addressing their employment-related needs. Contact us online or call us at (519) 821-5465 to schedule a confidential consultation and learn how we can assist you.