Law360 Canada (November 10, 2023, 12:45 PM EST) -- Appeal by City of Greater Sudbury (City) from a judgment of the Ontario Court of Appeal which set aside a judgment finding that the City was neither an employer nor a constructor within the meaning of the Occupational Health and Safety Act (Act). A woman died after she was struck by a road grader performing repairs. The grader driver was employed by Interpaving Limited, a company the City had contracted to complete road repairs. The Ministry charged the City under s. 25(1)(c) of the Act for failure to ensure that certain safety requirements of the Construction Projects (Regulation) had been met. The City acknowledged it was the owner of the construction project but argued that it was not an employer as it lacked control over the repair work and had delegated control to Interpaving Limited. The City was acquitted. The trial judge found that the City was neither an employer nor a constructor and owed no duties under the Act. She went on to find that the City had a due diligence defence to the charges. The provincial offences appeal court upheld the trial judge’s finding that the City was not an employer and did not address the appeal regarding the finding that the City acted with due diligence. The Court of Appeal concluded that the City was an employer within the meaning of the Act and allowed the appeal. The judgment was set aside, and the matter was remitted to the provincial offences appeal court to decide the Crown’s appeal of the City’s due diligence defence. The City has now asked the Court to determine what role control played in regulatory prosecutions against employers under s. 25(1) of the Act....