Ontario Court of Appeal Denies Crown Leave to Appeal, Affirms City of Greater Sudbury Exercised Due Diligence in Workplace Fatality

The Ontario Court of Appeal has denied the Crown’s motion for leave to appeal in a significant workplace fatality case involving the City of Greater Sudbury (City). This decision concludes a prolonged legal battle over employer liability, affirming that the City successfully demonstrated due diligence under the Occupational Health and Safety Act (the Act) despite being classified as an “employer” at a construction site where it did not directly employ the workers performing the activities which led to the fatality.

In our previous FTR Now, we reported on the Superior Court of Justice decision of R. v. Greater Sudbury (City) which upheld the initial decision of the trial judge, who had determined that the City had been duly diligent and therefore should be acquitted of all charges under the Act.

On September 20, 2024, the Crown brought a motion to seek leave to appeal this decision to the Court of Appeal. On March 31, 2025, the Court of Appeal dismissed the Crown’s motion for leave to appeal, effectively upholding the trial decision that had determined the City was successful in pleading its diligence defence.

Background

The case originated from a tragic accident on September 30, 2016, when a pedestrian was fatally struck by a road grader operated by an employee of Interpaving, a contractor hired by the City to perform road repairs.

Following this incident, both Interpaving and the City were charged with violations of Construction Projects, O. Reg. 213/91, contrary to s. 25(1)(c) of the Act. While Interpaving pleaded guilty before trial, the City contested the charges.

Procedural History

The subsequent litigation followed a complex path through the courts:

The Crown’s initial appeal to the Provincial Offences Appeal Court (POAC) was unsuccessful, with the judge upholding the finding that the City was not an “employer” or “constructor” under the Act.
The Ontario Court of Appeal subsequently reversed this decision, ruling that the City was an “employer.” However, as the POAC had not addressed the due diligence defence, the matter was remitted back for consideration.
The Supreme Court of Canada was split 4-4 on the appeal, effectively upholding the Ontario Court of Appeal’s decision and requiring reconsideration of the due diligence defence.
On August 23, 2024, the POAC judge heard arguments on whether the trial judge erred in finding that the City had exercised due diligence. The POAC judge found no error and dismissed the appeal.

Finding of Due Diligence

The trial judge’s finding that the City had adequately exercised due diligence was upheld by the POAC judge, and supported by several factors which demonstrated that the City had:

Followed proper tendering processes and had completed approximately 40 previous projects with Interpaving over five years
Paid a premium specifically for Interpaving’s expertise
Deployed City employees on the site to supervise and monitor Interpaving’s work
Notified Interpaving about regulatory non-compliance two weeks before the accident
Relayed public safety complaints to Interpaving
Alerted Interpaving about knocked-down fencing and inadequate signage
Required specialized NORCAT safety awareness training for workers
Regularly participated in progress meetings to monitor compliance

The Crown’s Motion for Leave to Appeal

The Crown sought leave to appeal to the Court of Appeal, arguing that the POAC judge had endorsed an incorrect interpretation of the due diligence defence. Specifically, the Crown contended that:

The trial judge erroneously found that acts of general due diligence, rather than actions specifically directed toward the alleged violations, satisfied the test for due diligence.
Both the trial judge and the POAC judge failed to properly understand the relationship between workplace control and the elements of the due diligence defence.

The Court of Appeal was tasked with determining:

Whether the POAC judge erred in his analysis of the due diligence defence; and
Whether the Crown’s application for leave to appeal raised standalone questions of law essential to the public interest or the administration of justice. Conversely, the City characterized the Crown’s appeal as an inappropriate attempt to relitigate factual determinations already made.

The Court of Appeal’s Decision

Justice Coroza ultimately denied leave to appeal, providing several reasons for this decision:

Application of the Correct Legal Test: The Crown argued that due diligence must specifically address the alleged violations rather than general safety measures, citing Ontario (Labour) v. Bondfield Construction Company Limited. However, Justice Coroza determined that the trial judge had properly considered the City’s specific actions, including its notifications to Interpaving regarding knocked-down fencing and inadequate signage at the construction site.
Understanding of Control in Due Diligence: Justice Coroza found that the POAC judge had correctly applied the principle that “what could have been done” is necessarily limited to steps within an employer’s control, consistent with the Supreme Court’s guidance in an earlier decision.
Factual Nature of the Appeal: The Court determined that the Crown’s arguments primarily challenged factual findings or the application of established law to specific circumstances, rather than raising distinct questions of law appropriate for a second-level appeal.

Justice Coroza emphasized that under s. 131 of the Provincial Offences Act (POA), the threshold for granting leave for a second-level appeal is “very high.” First-level POA appeal judgments are intended to be final. Justice Coroza concluded this was not an “exceptional case raising issues of broad public importance” that would justify further appellate intervention.

Key Takeaways

This decision establishes that owners who properly delegate construction safety responsibilities to qualified contractors, while maintaining appropriate oversight without taking direct control, can establish a due diligence defence if charged as an “employer” under the Occupational Health and Safety Act (provided, of course, the site owner takes appropriate measures to maintain worksite safety within the scope of its control).

It also confirms that a due diligence assessment must consider both the actual control an employer possesses and the reasonableness of their actions within these limitations.

If you have any questions regarding this topic, please do not hesitate to contact Stephanie Jeronimo, Allison MacIsaac, Nadine Zacks, David Bannon or your regular Hicks Morley lawyer.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

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