The legal battle in R. v. Greater Sudbury (City) was nothing short of a marathon. What started as a tragic construction site accident in 2015 quickly spiraled into a decade-long legal saga—one that would climb the judicial ladder to the Supreme Court of Canada before making its way back down to the Ontario Court of Appeal for a final reckoning.

At stake? The very definition of "owner" 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 "control." This case wasn't just about the plight of one owner/municipality—it sent shockwaves through the construction and workplace safety sectors, forcing project owners, employers and regulators to rethink how they navigate workplace health and safety laws.

Now, after years of legal twists and turns, the case has finally reached its conclusion.

Judicial journey:

  • Trial Court: The Ontario Court of Justice acquitted the City, ruling it was neither a "constructor" nor an "employer" under the (Ontario) Occupational Health and Safety Act ("OHSA"), emphasizing Interpaving's control over the project.
  • Ontario Court of Appeal: This court overturned the acquittal, determining the City qualified as an "employer" because it had contracted workers on-site, regardless of direct control. The case was remitted to assess the City's due diligence defense.
  • Supreme Court of Canada: In a split 4-4 decision, the Court upheld the Appeal Court's finding that the City was an "employer" and emphasized evaluating due diligence based on factors like control and contractor oversight. The case was returned to the Ontario Superior Court of Justice for adjudication of the City's defence of "due diligence."
  • Ontario Superior Court of Justice: On remand, the Superior Court upheld the City's due diligence defense, noting:
    • Control: The City had broad contractual powers but did not exercise daily control over the construction site.
    • Delegation: Lacking in-house expertise, the City appropriately delegated responsibilities to Interpaving, an experienced contractor.
    • Contractor evaluation: The City had a longstanding relationship with Interpaving, having collaborated on over 40 projects, and ensured its workers received safety training.
    • Monitoring: The City maintained oversight through progress meetings and addressed public complaints, demonstrating active engagement without direct control.

Leave to appeal sought and denied

On March 31, 2025, the Ontario Court of Appeal denied the Crown's request for leave to appeal the Ontario Superior Court of Justice's decision regarding due diligence. This effectively concludes the legal proceedings stemming from the 2015 incident. The Court of Appeal's dismissal signifies that the Crown can no longer contest the City's acquittal in this matter.

Key takeaways for constructors, owners and employers

  • Control is the defining factor: The Ontario Court of Appeal's decision solidifies that due diligence can be established when an owner truly cedes control of a construction project to a competent constructor. This means that simply hiring a contractor isn't enough—owners must be able to demonstrate that they entrusted the work to a qualified constructor without interfering in day-to-day operations.
  • A return to normalcy in contractual relationships: With this ruling, Ontario's construction industry can breathe a sigh of relief. The uncertainty created by the earlier stages of this case had cast doubt on whether owners could ever insulate themselves from liability under the OHSA. Now, the traditional understanding of roles and responsibilities in construction contracts has been reaffirmed—an owner who properly delegates and exercises due diligence is not automatically on the hook for a contractor's failures.
  • Delegation is not a free pass: While owners can shift operational control to a constructor, they cannot turn a blind eye. The City of Greater Sudbury successfully defended itself because it selected 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.
  • An ounce of prevention is worth a pound of cure: If this case teaches one lesson, it's that failing to proactively manage legal risk can be catastrophic. The parties involved have likely spent well over seven figures in legal fees, with nearly a decade of court battles to show for it. The cost of litigation, both financial and reputational, dwarfs the effort required to establish robust safety practices from the outset.

As a final note—construction is already a business that is fraught with risk. Owners, constructors and employers should remind themselves of this case prior to the start of every new upcoming project. We would strongly urge all parties involved to obtain professional advice to ensure that their interests are appropriately protected. As demonstrated by this 10-year-long saga, the price of proper due diligence is negligible compared to the cost and potential reputational harm associated with mounting a protracted legal defence in court.

How Gowling WLG can help

It is imperative to stay abreast of the evolving recommendations of our courts and regulators. At Gowling WLG, we are committed to monitoring legislative and case law developments by industry sector. For any questions you may have about this decision, or any other issues related to Construction and Occupational Health & Safety law, our Litigation & Dispute Resolution and Employment Labour & Equalities groups would be pleased to assist.