Greater Sudbury could be held liable for woman's 2015 death at downtown construction site
An Ontario appeals court has ruled Greater Sudbury was an employer at an Elgin Street road construction project in September 2015 where a woman was killed. (File)
SUDBURY -- An Ontario appeals court has ruled Greater Sudbury was an employer at an Elgin Street road construction project in September 2015 where a woman was killed.
Cecile Paquette was struck and killed by a road grader employed by Interpaving Ltd., a company contracted by the city to complete the project.
Previous court decisions – including an appeals court – held that for the purposes of legislation, the city was not an employer on the project, putting the responsibility for the tragedy on Interpaving.
The distinction is important because if Greater Sudbury was an employer on the project, it could be held partially responsible for Paquette's death under the Occupational Health and Safety Act.
The city was originally charged with being both a constructor and an employer on the project.
"Interpaving was found guilty but the city was acquitted in separate proceedings," said the court transcript of the appeal.
"The trial judge in the city’s case found that there was no signaller in assisting the grader operator, nor was a fence erected between the public way and the worksite, as required by the regulation. However, the trial judge concluded that the city was neither an employer nor a constructor and so owed no duties under the Act."
An appeals judge upheld that ruling, but the province was allowed to appeal on the basis the court had erred in ruling the city was not an employer.
In its decision, the appeals court said because the Occupational Health and Safety Act is "public welfare legislation," interpreting who is and isn't an employer "should be read liberally and broadly."
And a recent decision defined an employer as "a person who employs workers and secondly, that of one who contracts for the services of workers.”
"A person who employs one or more workers is, therefore, an employer for the purposes of the Act and is responsible for ensuring compliance with the Act in the workplace," the court transcript said.
Greater Sudbury had inspectors at the job site "for quality control purposes and monitored the progress of the work to confirm that the city was receiving the work it was paying for, the court ruled.
"Plainly, the city employed one or more workers at the project site … It is, therefore, an employer for the purposes of the Act."
While ruling the city was an employer, the court said there are other defences the city can rely on that should be heard in court. Primarily the "due diligence defence, in which the city would have to show it took reasonable steps to ensure safety at the jobsite, has yet to be heard in court."
"Accordingly, the matter is remitted to the appeal court for a hearing before a different judge to consider the Crown’s appeal of the city’s due diligence defence," the court ruled.
Read the full transcript here.