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F E A T U R E www.thesafetymag.com/ca 19 HEALTH AND SAFETY LEGAL UPDATE COS editor Amanda Silliker checks in with four employment law lawyers from across the country to get their take on the most significant cases and biggest trends in occupational health and safety law LAST year, a variety of significant issues took the spotlight when it comes to health and safety law. From recreational cannabis to director liability, the following provides a roundup of the most important takeaways from 2019's legal decisions and trends according to our panel of experts. Ontario (Labour) v. Sudbury (City) Case summary: The City of Sudbury in Ontario hired a general contractor for a road and water main project. The general contractor was operating as the "constructor" for the project. In September 2015, a member of the public was struck and killed by a grader operated by an employee of the constructor. The Ontario Ministry of Labour investigated and charged the city as both a constructor and employer. (The general contractor was charged as well.) The city was acquitted of all charges at trial and those acquittals were upheld at the Crown's first appeal. But the Crown renewed its arguments and filed an application for leave to appeal. On Oct. 28, 2019, the Ontario Court of Appeal confirmed that the city was not responsibilities. In this case, the City of Sudbury could be considered the "employer" on the project — not simply the owner — because it was sending in staff for quality control reviews, says Warning. The Crown is trying to prove if the city had a sufficient level of control over the project, it would have liability as "employer" and, therefore, would have some liability over the fatality. "An employer who may exercise similar levels of control could be found to have occupational health and safety liability for workers that they don't employ, that they didn't contract directly with, which seems to alter the typical expectations for employers," he says. "It seems to change the analysis on employer responsibilities… much more aligned to what a constructor might have." Norm Keith, a partner at Fasken in Toronto, says the case is a good news, bad news story for employers. The decision around "constructor" is the good news, but the further scrutiny into "employer" could mean bad news — although that's yet to be determined. He further notes that these different definitions for construction projects are the constructor, but it granted leave to the Crown to consider whether an "owner" of a construction project can also be an "employer" under the Occupational Health and Safety Act. Issue at hand: If the Court of Appeal determines that an owner can also be an employer, this will alter the landscape of occupational health and safety responsibilities on construction sites. Ontario, Prince Edward Island and Nova Scotia are likely to be most directly affected by the decision because the OHS legislation in each of these jurisdictions provides for the role of a "constructor" that can undertake a project for an "owner" and also have very broad OHS duties for employers, says Jeremy Warning, a partner at Mathews Dinsdale and Clark in Toronto. Commentary: When a constructor is appointed for a project, it holds the overall responsibility for health and safety on the project and the owner does not have day-to-day health and safety confusing and "archaic" and he would like to see a model adopted similar to the Western provinces that use a simple definition of prime contractor, who is considered to also be the owner. "Safety should not be left uncertain or ambiguous and the Ontario definition often leaves who is primarily responsible for safety at the project quite uncertain," Keith says. "The contractor label and who files the notice of project in Ontario that self-identities the constructor, it's literally a hot potato — nobody wants it. But yet safety doesn't often have the same level of attention or importance to developers as does saving money." Ontario (Ministry of Labour) v. New Mex Canada Inc. Case summary: In 2013, an employee at New Mex fell to his death while working on an order picker at the company's warehouse in Brampton, Ont. The company was fined $250,000 (plus a 25-per-cent victim fine surcharge) and each director was sentenced to 25 days in jail. The decision was appealed, and in a decision released on Jan. 18, 2019, the fine against New Mex was reduced to $50,000 and the jail sentences were replaced in favour of two $15,000 fines against the directors. Issue at hand: The incarceration of directors for occupational health and safety violations. Commentary: The most notable takeaway from this case is what the Ontario Court of Appeal said about jail sentences: It may be acceptable for first-time offenders and it may be appropriate even if other penalties (such as a significant fine) could have been a "It is perhaps the first detailed consideration of sentencing for regulatory matters the Court of Appeal has engaged in for the better of 30 years." Jeremy Warning, Mathews Dinsdale & Clark