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\u201cOntario\u2019s construction industry can breathe a sigh of relief,\u201d write<\/a> Gowling WLG partners Sahil Shoor, Tushar Anandasagar and associate Michael Piaseczny.<\/p>\n Concluding what they refer to as \u201cnothing short of a marathon,\u201d the critical case of the Crown vs. the Greater City of Sudbury has reached a final ruling from the Ontario Court of Appeal.<\/p>\n The reason this final ruling is so critical to the province\u2019s construction industry is that it finally sets out the matter of worksite control and the project owner\u2019s liability under the Ontario Health and Safety Act (OHSA).<\/p>\n As the Gowling team writes, at stake was \u201cthe very definition of \u2018owner\u2019 responsibility in the construction industry and whether such contracting parties could be held liable for the actions of contractors that were not under their day-to-day supervision or \u2018control.\u2019\u201d<\/p>\n The issue surrounded a tragic worksite incident that occurred in 2015.<\/p>\n As was reported in the Daily Commercial News<\/a> over several months, the Greater City of Sudbury had contracted with Interpaving Limited to act as the \u201cconstructor\u201d to repair a downtown watermain. During the repairs, an Interpaving employee struck and killed a pedestrian when driving a road grader through an intersection in reverse.<\/p>\n The ministry charged the city for breaching its obligations as an \u201cemployer\u201d under the OHSA by failing to ensure certain safety requirements of the province\u2019s construction projects regulation had been met.<\/p>\n The city conceded it was the owner of the construction project and had sent its own quality control inspectors to the site to oversee Interpaving\u2019s contract compliance. However, the city denied it was an employer, arguing it lacked control over the repair work and had delegated that control to Interpaving.<\/p>\n The case went through a series of appeals resulting from the trial judge\u2019s original acquittal of the city in 2018, ultimately reaching the Supreme Court.<\/p>\n The city\u2019s defense was based on it having maintained \u201cdue diligence.\u201d This has now been upheld by the Ontario Court of Appeal as per the original trial judge\u2019s ruling, thus concluding further legal action related to the 2015 incident.<\/p>\n In terms of takeaways for constructors, owners and employers, Shoor, Anandasagar and Piaseczny offer the following.<\/p>\n First relates to control ceded to a competent constructor.<\/p>\n \u201cSimply hiring a contractor isn\u2019t enough \u2014 owners must be able to demonstrate that they entrusted the work to a qualified constructor without interfering in day-to-day operations.\u201d<\/p>\n Second, although there has been reaffirmation of the traditional understanding of roles and responsibilities in construction contracts, they say that at the same time, delegation and due diligence doesn\u2019t mean owners are off the hook and can turn a blind eye.<\/p>\n \u201cThe City of Greater Sudbury successfully defended itself because it\u00a0selected a contractor with experience, reviewed safety records and maintained reasonable oversight. Owners who fail to conduct proper due diligence upfront may find themselves in legal jeopardy.\u201d<\/p>\n Third, it is critical to proactively manage legal risk.<\/p>\n \u201cAn ounce of prevention is worth a pound of cure,\u201d Shoor, Anandasagar and Piaseczny write. \u201cThe cost of litigation, both financial and reputational, dwarfs the effort required to establish robust safety practices from the outset. Owners, constructors and employers should remind themselves of this case prior to the start of every new upcoming project. \u201d<\/p>\n<\/p><\/div>\n