Casual Legal: When is a municipality considered an employer?
DISCLAIMER: This article is meant to provide information to Alberta Municipalities members 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made to provide current and accurate information, changes to the law may cause the information in this article to be outdated. This content is not intended for the general public.
By Mitchell Hayward
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
In November 2023, the Supreme Court of Canada released a decision that expanded employers’ occupational health and safety obligations, which can have significant ramifications on municipalities throughout Canada.
In R v Greater Sudbury (City), 2023 SCC 28, the Supreme Court of Canada determined that a person can be an employer under the Ontario occupational health and safety legislation even when they lack control over the workplace and worker.
In this case, the City of Sudbury hired a contractor to repair a downtown water main. During construction, an employee of the contractor accidentally struck and killed a pedestrian while driving a grader through an intersection. The City and the contractor were issued several violations for contravening the occupational health and safety legislation in Ontario. One of the violations was issued against the contractor and the City under section 25 of the Ontario occupational health and safety legislation which provided that all “employers” had a duty to ensure that the measures and procedures in the regulations were being followed.
While the City acknowledged it was the owner of the construction project, it denied that it was an employer since it had no control over the repair work and had delegated that work to the contractor. The Supreme Court of Canada disagreed.
The City of Sudbury was determined to be an employer under Ontario occupational health and safety legislation because the definition of “employer” can include employer-independent contractor relationships. The Court explained that the occupational health and safety legislation was created with the intention that all parties involved at a construction project would work together to ensure safety:
"This Act is specifically designed to expand historically narrow safeguards and seeks to promote and maintain workplace health and safety by expressly imposing concurrent, overlapping, broad, strict, and non-delegable duties on multiple workplace participants in what was known as the “belt and braces” strategy."
The Alberta Occupational Health and Safety legislation contains similar, albeit distinct, language. Therefore, an argument could be made that the reasoning in the decision above applies to the interpretation of Alberta’s legislation. If such an argument were accepted, municipalities could be found to be employers on construction projects for the purposes of occupational health and safety legislation despite not having exerted any control over the projects. Municipalities should be cautious on projects and should continue to ensure appropriate safeguards are in place.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or casuallegal [at] abmunis.ca (email )to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or riskcontrol [at] abmunis.ca (email) to connect with Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
