Few issues are heard by the Supreme Court of Canada (SCC), and fewer still have any direct impact on the practice of architecture. The potentially far-reaching decision, issued by the SCC in November 2023, in the case of Regina versus Greater Sudbury (City) – often referred to as “R. v. Sudbury” has generated a lot of buzz with various law firms publishing articles and hosting webinars on the implications. Many of the articles are available through the Lexology web site. As reported in Issue 13 of Practice Advisory Newsletter from 2021, Practice Advisory Services (PAS) has been keeping an eye on the development of this on the practice of architecture in Ontario.

While the SCC has ruled on the limited issues set before it, the case has returned to the lower courts to resolve outstanding issues at trial. These decisions will be of interest when they are rendered. The expectation is it may be a year before that happens. 

Brief Case Outline

For those unfamiliar with the case, the briefest outline is that a contractor doing infrastructure work for the municipality failed to erect a barrier or provide a flag person, resulting in the death of a pedestrian. The Ministry of Labour charged the contractor and the municipality with violations of the Ontario Occupational Health and Safety Act (OHSA). The city objected on the basis that they only sent quality inspectors to the site and did not engage in any construction, but rather it was the contractor, in their role as constructor, who had greatest degree of control at the site. The case was heard and then appealed up to the SCC. More detailed chronologies of the case may be read here..

Overview of the SCC Ruling

Much of the discussion relates to the city as owner and whether or not the city was also an employer under OHSA. The SCC ruled that since the city had hired the contractor to do the work, it was indeed an employer. It was also determined that the city was an employer because they sent inspectors to the site even though they didn’t do any construction work. It is this latter aspect that likely impacts all consultants, and possibly anyone who attends a construction site for any reason.

The SCC ruled that control of the site was not a consideration in determining whether an entity was an employer—with all the related responsibilities and liabilities—under OHSA. The SCC upheld the Ministry of Labour’s charges against the city as an employer, and that the city had failed to comply with its duties as an employer under OHSA. The court did hold open the possibility that lack of control of the site may be part of a due diligence defence that could be mounted by the city before the lower court.

Suggested Items to Review Pending Further Rulings

The dust has not settled on the case or its impact on construction. It would be prudent for Certificate of Practice holders and OAA members to:

• review and understand your rights and responsibilities under OHSA as a worker, a supervisor, and as an employer;
• review your client contracts to ensure they are clear and explicit as to your role in relation to site safety;
• review your bid packages and specification Divisions 00 and 01 to ensure they are clear and explicit as to the roles of the client and the contractor in relation to site safety;
• review client proposed terms and conditions for the construction contract to ensure they do not impose inappropriate expectations or requirements on the practice;
• create awareness with partners, management, and staff regarding the importance of confirming anyone going to site has all the appropriate training (required or otherwise) prior to going to site (review internal checklists, procedures, and policies as required).

It is to be expected that many clients will start requiring new or additional wording to be included in both architectural services and construction contracts in relation to site safety. Any such wording from clients, and any you propose, should be reviewed by your own legal counsel to assess their appropriateness, that they do not impose responsibilities or liabilities on you that are not otherwise yours at law. Contractual liabilities that exceed what is yours at law would not be covered by your professional liability insurance policy.

PAS will continue to monitor the development and communicate to practices via the Practice Advisory e-newsletter. It is also assessing updates to key resources in the Practice Advisory Knowledge Base as well.

This article originally appeared in the Practice Advisory—the OAA’s bimonthly e-newsletter developed by the OAA’s Practice Advisory Services team, comprising architects and other staff, which offers numerous resources for both member and the public. The OAA does not provide legal, insurance, or accounting advice. Readers are advised to consult their own such representatives to obtain suitable professional advice in those regards.