Casual Legal: When is a Municipality an Employer for the Purposes of OHS?
By Emma Banfield
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
In a case out of Ontario, the Court of Appeal determined that for the purposes of Occupational Health and Safety (OHS) legislation, the driver of a contracted road grader was an employee of the City.
The City of Sudbury hired Interpaving Limited to complete road repairs. A driver of one of the company’s graders struck a woman at an intersection, and she subsequently died. Both the company and the City were charged with violations of Ontario OHS legislation. The City was charged on the basis that it was both a constructor and an employer under the legislation.
The trial judge found the City was neither a constructor nor an employer, and therefore owed no duties under the legislation. The trial judge also found the City successfully made out a due diligence defence. The Crown appealed, but the appeal was dismissed. However, the Crown then sought leave to determine if the City was or should be considered an employer under the legislation.
The Court of Appeal considered the legislation and determined the City should fall under the definition of employer because the definition “covers two relationships: firstly, that of a person who employs workers and secondly, that of one who contracts for the services of workers.” Further, the Court determined that anyone employing one or more workers is an employer under the legislation and can be responsible to ensure compliance with the legislation. “Plainly, the City employed one or more workers at the project site within the meaning of [the Act].”
Interestingly, however, the Court declined to address the question of whether a municipality contracting work to third parties must exercise control over the third parties or their workers to order to be considered an employer for the purposes of OHS legislation. Although this broader question was raised in the grant of leave to appeal, the Court declined to consider the issue based on the record before it.
The City has sought leave to appeal to the Supreme Court of Canada, so this may not be the last word on this topic.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or email casuallegal [at] abmunis.ca and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca, or call 310-MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.