Construction Project Owners Face Unprecedented Risks
In 2015, the City of Sudbury (City) contracted with a General Contractor (GC) to repair a water main and repave the street. The GC employee struck and killed a pedestrian. The Crown charged the City as “employer” and “constructor” along with the GC.
Significant confusion and disinformation about the courts’ decisions in the R. v. Greater Sudbury case exists among the municipal, engineering, and construction communities. The Supreme Court of Canada's decision used the word “absurd” or “absurdity” 29 times in its 201-paragraph judgement. Yet, the case has not been “fully” decided and will have far-reaching impacts and unprecedented risks on construction project owners and the broader public who contract out construction-related work to a third party. Here are some of the facts:
· The Ontario Court of Justice (OCJ) trial judge acquitted the City of all charges under the Occupational Health and Safety Act (OHSA). The trial court was also satisfied that, on a balance of probabilities, the City exercised due diligence. The trial judge concluded (and some Supreme Court judges echoed) that “the City should be commended and not condemned for its behaviour”.
· The Superior Court of Justice (SCJ) dismissed the crown’s appeal against the Ontario Court of Justice decision.
· The Ontario Court of Appeal overturned the OCJ and SCJ decisions using “liberal” and “broad” interpretation and application of OHSA. The court also remitted the matter to the appeal court to determine the City’s due diligence defence.
· The City’s appeal against the Ontario Court of Appeal at the Supreme Court was dismissed on “equal division”. Four judges allowed the City’s appeal, four dismissed the case, and the ninth did not make any disposition. Therefore, the Ontario Court of Appeals decision stands in this case. That is, the City was an employer of its own staff as well as of the general contractor and had to prove that it exercised due diligence. Unsurprisingly, one of the Supreme Court judges strongly disagreed “to remit the matter to the trial court to reconsider the exact same issue”. The same judge also noted that “practical unavailability [of due diligence defence] for more vulnerable parties should be acknowledged since access to justice remains out of reach for many Canadians”.
Absurd (that is, unreasonable, illogical, inappropriate, ludicrous, and ridiculous) is the best word to explain the situation. Because of the “extravagant proposition,” as noted by the intervener municipalities, project owners are damned if they do and damned if they don’t. Let's hope the Ontario's parliament takes responsibility for cleaning up some provisions of the OHSA as quickly as possible.
https://lnkd.in/g_UeXFup
Good Roads and Trenchless Institute have partnered to deliver the Collaborative Contracts Workshop.
The workshop will cover various collaborative contract delivery methods and present a detailed overview of the R. v. Greater Sudbury case and its implications for project owners.
For more information, please visit https://lnkd.in/d442fZuc.
Superintendent
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