Conventional wisdom might suggest not. But this is the very question the Court of Appeal for Ontario agreed to consider on October 28 when it granted the Ministry of Labour (MOL) leave to appeal the decision in Ontario (Labour) v. Sudbury (City).

In 2015, Sudbury contracted with Interpaving Limited to repair a water main in the centre of the City. The contract stipulated that Interpaving would assume control over the entire project, including assuming the role of “constructor” under the OHSA as well as the responsibility of meeting the OHSA statutory requirements. For quality assurance purposes the City contractually reserved its right to inspect through its own employees the contractor’s work and progress on the project.

On September 30, 2015, a pedestrian was struck and killed by a road grader while attempting to cross a closed intersection under construction. The driver was an Interpaving employee. No signallers were present. There was no fencing separating the public right of way from the intersection.

Interpaving was charged and pleaded guilty to offences under the OHSA. However, the MOL also charged the City, as both a constructor and an employer. The theory of the Crown was that, given that the City had contractually reserved its right to inspect the contractor’s work and progress, it exercised sufficient control over the workplace placing it in the shoes of a constructor or employer. The trial judge disagreed and dismissed the charges against the City. The MOL’s appeal to the Superior Court was dismissed by Poupore J.

Although the MOL sought leave to appeal to the Court of Appeal on the basis that the lower courts had erred in finding that the City was neither a constructor nor an employer, leave was granted on the latter issue alone. Unlike the statutory definition of constructor, which imports control over a project as an essential element, the statutory definition of employer does not. The question of whether the lower court’s had erred in their assessment of the City’s control over the project was not open to an appeal However, this was not the case with employer, Brown J.A. observing:

The interpretation of “employer” in the OHSA adopted by the courts below may, at the end of the day, be free from legal error. However, a large number of municipal infrastructure projects are undertaken in this province each year in which the municipality contracts the work out to a third party. Whether a municipality may or may not fall within the definition of “employer” in respect of such projects by reason of the degree of control it exercises over the project engages a question of law alone of interest to the public at large….

One would expect the appeal to be heard and determined in 2020.