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Provincial offences — Occupational health and safety — Duties of employers

(0:00:09) Reasons: Martin J. (Wagner C.J. and Kasirer and Jamal JJ. concurring)
(0:00:17) I. Introduction – 1
(0:05:02) II. Analysis – 7
(0:05:26) A. Overview of the Occupational Health and Safety Act – 8
(0:08:22) B. What the Ministry is Required to Establish – 12
(0:09:52) (1) Proving the City Is an “Employer” Under Section 1(1) of the Act Does Not Require the Ministry to Prove Control – 14
(0:15:00) (2) Proving the City Breached Section 25(1)(c) of the Act – 23
(0:16:02) (a) Text – 25
(0:22:12) (b) Context – 32
(0:26:47) (c) Purpose – 38
(0:34:46) (d) The City Breached Its Duties as an Employer – 46
(0:35:38) C. The Defence’s Burden – Proving Due Diligence – 48
(0:36:24) (1) An Employer’s Control Should Be Considered Only as Part of the Due Diligence Defence – 49
(0:41:41) (2) How an Employer’s Control Informs the Due Diligence Defence – 54
(0:46:01) D. Summary – 61
(0:48:09) III. Conclusion – 62

(0:48:27) Joint Dissenting Reasons: Rowe and O’Bonsawin JJ. (Karakatsanis J. concurring)
(0:48:34) I. Overview – 63
(0:51:35) II. Facts – 67
(0:53:48) III. Judgments Below – 70
(0:53:51) A. Ontario Court of Justice – 70
(0:55:13) B. Ontario Superior Court of Justice – 71
(0:56:12) C. Court of Appeal for Ontario – 72
(0:57:58) IV. Issues – 74
(0:59:05) V. Analysis – 76
(1:00:55) A. The Occupational Health and Safety Scheme – 78
(1:08:53) B. The Definition of “Employer” Under Section 1(1) – 88
(1:10:20) (1) The First Branch Is Focused on Traditional Employment Relationships – 90
(1:13:52) (2) The Second Branch Extends the Definition of “Employer” – 95
(1:15:52) C. The Duties of an Employer Under Section 25(1)(c) and the Regulation – 105
(1:21:22) (1) Section 25(1)(c) Requires Employers to Comply With Measures That Apply to Them
(1:26:11) (2) The Regulation Applies to an Employer’s Work Where There Is a Relationship Between the Measure and the Employer – 111
(1:26:19) (a) The Text of the Regulation – 111
(1:29:16) (b) The Structure of the Regulation and the Act – 116
(1:33:13) (c) The Act’s Division of Roles in the Construction Context – 119
(1:39:22) (d) The Purpose of the Regulation and the Act – 126
(1:49:05) (e) Absurdity and Legislative Intent – 135
(2:00:11) (3) Summary and Guidance – 150
(2:03:46) D. The Role of the Defence Provided for at Section 66(3) – 155
(2:05:10) E. Application – 157
(2:05:23) (1) Is the City an Employer Under Section 1(1)? – 158
(2:06:29) (2) Do Sections 65 and 104(3) of the Regulation Apply to the City as an Employer Through the Operation of Section 25(1)(c) of the Act? – 160
(2:08:01) VI. Conclusion – 162

(2:08:22) Dissenting Reasons: Côté J.
(2:08:26) I. Introduction – 163
(2:10:33) II. Analysis – 166
(2:13:05) A. Points of Agreement With Rowe and O’Bonsawin JJ – 170
(2:13:09) (1) Section 25(1)(c) of the Act Must Be Read in Context
(2:16:02) (2) A Project Owner Is Not the “Employer” of the Constructor or the Constructor’s Workers – 173
(2:18:06) B. The “Belt and Braces” Approach to Worker Safety Is Not Limitless – 175
(2:18:11) (1) Statutory Purpose – 175
(2:24:45) (2) Due Diligence – 184
(2:27:05) C. Application – 188
(2:27:07) (1) The City Was Not an “Employer” on the Construction Project – 188
(2:32:13) (2) Due Diligence – 194
(2:36:35) III. Summary and Disposition – 200