⚖️ Safety first

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TODAY’S DOCKET

  • Workplace safety: latest SCC decision has major implications for construction liability

  • Roundup: Nygard guilty. Plus, does the Charter guarantee your right to do drugs wherever you want?

SCC

Tied decision takes expansive approach to workplace liability

Thinking about remodelling that spare bathroom? If you’re in Ontario, you might want to spend some time reading the Occupational Health and Safety Act before you get started. The Supreme Court’s most recent decision has major ramifications for construction projects of all sizes.

Yes, the decision was technically a tie. And yes, that means the Court’s reasons shouldn’t hold any precedential value. But good luck arguing that to your trial judge. The tie led to the appeal being dismissed, so you can expect courts to place significant weight on the “majority” reasons that line up with that result (those written by Justice Martin).

What happened: The City of Sudbury hired a paving company to repair a water main. While driving heavy equipment, one of the paving company’s workers struck and killed a pedestrian. The workers weren’t following legally required safety protocols — like using a fence to block off the construction site.

The paving company is clearly responsible. They were the general contractor for the project. Their worker was driving. But what about the City?

The Crown charged the City under the Occupational Health and Safety Act. Prosecutors argued the City was an “employer” under the Act and had a duty to ensure safety requirements were followed. The City said it delegated safety compliance to its general contractor, the paving company.

Lower courts: At trial, a justice of the peace said the City was not an employer. A judge agreed, saying any other result would “substantially” change how parties manage construction projects. But the Court of Appeal ruled against the City. The Court of Appeal said the City was an employer because the City occasionally sent its own employees to inspect how things were progressing at the site.

On appeal: The “majority” reasons at the SCC went even further than the Court of Appeal. Justice Martin said the City became an employer as soon as it hired a general contractor to complete the work. Even if the City hadn’t sent its own employees to inspect the site, it still would have been on the hook. And anyone else hiring a general contractor is now in the same boat.

The dissenting judges pointed out the sweeping effects of the majority’s decision, but those concerns evidently weren’t enough to break the tie.

What next: The City can still defend the charges by showing it exercised due diligence. That’ll be decided by the trial court.

According to Justice Martin, the City’s due diligence defence might include: “We didn’t know what we were doing when it came to workplace safety, so we hired and trusted a more sophisticated contractor.” I’ll be keeping that one in my back pocket in case a future home reno contractor has an accident.

Decision report card:

◻️◻️🙂◻️◻️Factual interest

◻️◻️🙂◻️◻️ Legal interest

◻️◻️◻️◻️🦺 Making safety everyone’s responsibility

HEARSAY ROUNDUP

Canadiana

⌛️ On their fifth day of deliberations, a jury convicted former fashion mogul Peter Nygard of four counts of sexual assault. He was acquitted of two other charges. Brian Greenspan, Nygard’s lawyer, said he’s considering an appeal about similar fact evidence — whether it was appropriate to treat the complainants’ evidence collectively. Once Nygard gets these proceedings all tidied up, he’s still facing extradition to the US over human trafficking charges; a class action lawsuit brought by 57 other women alleging sexual assault; and a lawsuit brought by his own sons, who allege Nygard hired a sex worker to sexually assault them when they were teenagers.

💰 The lawyers who helped secure a record-setting $23-billion settlement for First Nations families have agreed to take a pay cut. Canada opposed paying the lawyers $80 million in fees, but they’ve settled for $55 million (plus taxes and disbursements). The fees relate to the now-resolved discrimination claim and class-action proceedings against Canada for underfunding First Nations child welfare services.

💉 Multiple groups in BC are challenging the government’s decision to restrict drug use in public places. After heading down the road of fully decriminalizing drug use, the government recently decided that “open drug use in community gathering places” might not be a good idea. The province passed legislation earlier this month to outlaw drug use in places like playgrounds and public parks. Groups including the Harm Reduction Nurses Association say that limitation poses harm to drug users and violates the Charter.

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