Canada’s top court rules Sudbury was employer at job site where woman was killed

The Supreme Court of Canada has dismissed an appeal by the City of Greater Sudbury, confirming a lower court ruling that the city was the employer at a job site where a pedestrian was killed.

The fatality took place at a road reconstruction project in September 2015 outside a senior’s residence on Elgin Street. Cecile Paquette was struck and killed by an employee of Interpaving Ltd. who was driving a road grader, in reverse, through an intersection.

“Contrary to a provincial regulation on construction projects (the Regulation), no fence was placed between the construction project workplace and the public intersection, and no signaller was assisting the Interpaving worker,” the Supreme Court of Canada (SCC) said in a brief on its decision.

In separate proceedings, Interpaving was convicted of breaching its duty as an employer under section 25(1)(c) of the Occupational Health and Safety Act to “ensure that … the measures and procedures prescribed (in the Regulation) are carried out in the workplace.”

Greater Sudbury was charged as an employer on the project, making them liable, as well. But the city appealed lower court decisions that ruled they were the employer, eventually appealing to the top court.

“The city agreed it was the owner of the construction project, but denied that it was an employer because it lacked control of the repair work and had delegated control to Interpaving,” the SCC said.

After the lower court rulings, the Court of Appeal for Ontario ruled the city did meet the definition of employer under the act and found Sudbury liable.

However, it said the city could pursue a due diligence defence and argue it had taken all reasonable steps to ensure safety at the job site.

The fatality took place at a road reconstruction project in September 2015 outside a senior’s residence on Elgin Street. Cecile Paquette was struck and killed by an employee of Interpaving Ltd. who was driving a road grader, in reverse, through an intersection. (File)

“It returned the question of the city’s due diligence defence to the provincial offences appeal court for determination,” the SCC said.

Instead of arguing due diligence, however, the city appealed the ruling that it was the employer.

SCC Justice Martin said allowing the appeal would defeat the purpose of the legislation, since cities could simply hand off responsibility for safety to contractors. However, the due diligence defence is still an option.

“It is open to an accused – in this case, the city – to prove that its lack of control suggests it took all reasonable steps in the circumstances,” the SCC said.

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“For these reasons, Justice Martin dismissed the appeal and upheld the Court of Appeal’s order returning the issue of the city’s due diligence defence to the provincial offences appeal court for determination.”

In a statement Friday, Greater Sudbury said it is reviewing the decision.

"The city is currently reviewing the decision of the Supreme Court and evaluating next steps," the statement said.

"As the issue of due diligence has been returned to the provincial offences appeal court for determination, the city is unable to speak to matters that remain in litigation."