The “belt and braces” approach: The Supreme Court of Canada strengthens occupational health and safety obligations

December 15th, 2023

On November 10, the country’s highest court issued an interesting decision on employers’ health and safety obligations in R. v. Greater Sudbury (City), 2023 SCC 28. The decision reaffirms that occupational health and safety (OHS) is everyone’s responsibility and that an employer can be held liable for an OHS violation even if it is not the fault of one of its own employees.

This decision is of interest to owners that hire general contractors to manage projects.



The facts of the case can be summarized as follows:

  • The City of Greater Sudbury (the “City”) hired contractor Interpaving Limited (“Interpaving”) to repair a water main;
  • An Interpaving employee struck and killed a pedestrian while backing up a road grader during the repair work;
  • Various OHS violations were found and citations were issued against both Interpaving and the City;
  • The City was initially acquitted of the offence of failing to comply with an employer’s duty under section 25(1)(c) of the Act respecting occupational health and safety, R.S.O. 1990, c. O.1 (the “Act”) to ensure that prescribed measures and procedures are carried out in the workplace on the basis that it did not have the status of an employer. The Court of Appeal for Ontario reversed the decision, finding that the City could be considered an employer under the Act, and remanded the case back to a lower court for consideration of the due diligence defence. The City appealed this decision to the Supreme Court of Canada (the “Court”).


The issue before the Court

In this case, the Court had to determine whether the City could be held legally liable as an employer even though it had no control over the repair work (other than sending quality control inspectors to the project site) and that control had been delegated to Interpaving.



It should be noted that the Court issued an unusual 4-4 decision (one of the judges of the Court resigned during the deliberations). However, the Chief Justice of the Court cast the deciding vote for the majority.

The majority decision

The majority concluded, as did the Court of Appeal for Ontario, that the City was an employer under the Act, that it had breached its duties under the Act by failing to ensure that prescribed measures and procedures were carried out in the workplace, and that the issue of the City’s due diligence should be remanded to the lower court.

The majority noted that while control over workers and the workplace may affect the due diligence defence, the text of the Act does not require the prosecution to prove these elements to show that the City breached its obligations as an employer under the Act.

The Court pointed out that OHS duties are allocated among various classes of workplace actors, including constructors, employers and owners. These duties are concurrent and overlapping, meaning that several different actors may be responsible for the same protective functions and measures, which the Court referred to as the “belt and braces” approach. In short, if multiple workplace actors fail in their duty to safeguard health and safety, they cannot point to others’ failures as an excuse for their own.

While the issue of control is not relevant to the analysis of the concept of employer, it will be relevant to the proof of due diligence. The majority emphasized that it is open to an accused to prove that its lack of control suggests that it took all reasonable steps in the circumstances. Relevant considerations for the court’s determination of due diligence may include:

  • the accused’s degree of control over the workplace or the workers;
  • whether the accused delegated control to the constructor in an effort to overcome its own lack of skill, knowledge or expertise to complete the project in accordance with the Regulation;
  • whether the accused took steps to evaluate the constructor’s ability to ensure compliance with the Regulation before deciding to contract for its services;
  • and whether the accused effectively monitored and supervised the constructor’s work on the project to ensure that the prescriptions in the Regulation were carried out in the workplace.

Dissenting judges

They pointed out that treating the owner of a construction site as automatically being the employer of hired or contracted workers would undermine the design of the scheme and that it would be absurd to interpret the Act and the Regulation as obligating every employer at a construction project to ensure compliance with all measures contained within the Act and the Regulation.



While the principles set out in this decision are not entirely new, as Quebec courts have already recognized that an employer can be held liable for failing to protect the health and safety of another employer’s workers, R. v. Greater Sudbury (City) increases the liability of employers, particularly owners, and serves as a reminder that lack of control over workers or workplaces is not a sufficient defence.

In practical terms, this means that an owner that delegates work to a contractor will need to conduct pre- and post-contract audits to ensure the contractor’s compliance with OHS standards in order to establish a due diligence defence.

It will be interesting to see the impact of this decision and how it will be interpreted by the courts, particularly in relation to the concept of a principal contractor. If you have any questions, please contact the professionals at Langlois Lawyers.