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POA - Definitions - "Owner". Ontario (Ministry of Labour, Immigration, Training and Skills Development) v. Greater Sudbury (City)
In Ontario (Ministry of Labour, Immigration, Training and Skills Development) v. Greater Sudbury (City) (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown POA s.131 leave to appeal motion.
Here the court considers the definition of "owner" in the POA [s.1(1)]:[9] To provide context for the Crown’s request for leave, it is useful to briefly summarize the decisions of the Supreme Court of Canada, the reasons of the trial judge and the reasons of the POAC judge on the issue of due diligence.
(1) R. v. Greater Sudbury (City), 2023 SCC 28, 487 D.L.R. (4th) 387
[10] As noted above, the appeal from this court dealt primarily with the interpretation of the term “owner” under the Act. Martin J. writing on behalf of herself, Wagner C.J., Kasirer and Jamal JJ. wrote that a determination of how much “control” an owner had over the workplace/workers is not required when determining:a) if an owner is an employer under s. 1(1) of the Act, and
b) if s. 25(1)(c) of the Act has been breached by the employer. [11] Instead, in her view, the degree of control an employer had should only be considered when determining if the employer exercised the requisite due diligence. Martin J. noted that an accused is in the best position to demonstrate that its lack of control establishes that it took all the reasonable steps in the circumstances. She instructed that a fact-finder should assess, either in absolute or comparative terms, whether an employer had control over the worker and the workplace; and while due diligence is best measured against what could have been done, “what could have been done” is necessarily limited to those steps that are within the employer’s control: at para. 56.
[12] Significantly, Martin J. emphasized that the guidance given in the decision was not novel, as the consideration of control was “well recognized in existing authorities”: see R. v. Gonder (1981), 1981 CanLII 3207 (YK TC), 62 C.C.C. (2d) 326 (Y. Terr. Ct.). Finally, at para. 61, she held that relevant considerations for the due diligence defence included:. The accused’s degree of control over the workplace or the workers there;
. 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 compliance 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.[1]
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