The case concerned a municipality that had contracted with a company that, as a general contractor, would repair a water main, assuming the role of 'builder' under the OHSA, responsible for ensuring that the project complied with OHSA requirements.

During the work, a pedestrian tragically died while crossing an intersection due to a collision with a road grader driven by a general contractor's employee. 

As no fence was placed between the construction project workplace and the public intersection, and no signaller was assisting the employee, the Company was convicted of breaching its duty as an employer under section 25(1)(c) of the Act to ensure that the measures and procedures prescribed are carried out in the workplace.

The question is whether the city was also liable as an employer for breaching the same obligation, which the city denied because it had no control over the repair work.  

The lower court agreed with the city, while the Ontario Court of Appeal reversed this decision, applying a definition of 'employer' set out in an earlier Ontario Court of Appeal decision that excluded the control requirement, thus holding the city liable.

The decision was upheld by the Supreme Court, which held that the city was an employer of the general contractor and had breached its obligations under Section 25(1)(c) of the Act, stating that requiring a control requirement on the employer would defeat the purpose of this remedial public benefit legislation.

It is, therefore, essential for companies to take this decision into account by putting in place a series of actions and arrangements to enable them, where necessary, to prove that they have acted with due diligence, including as an employer within the meaning of the Ontario Occupational Health and Safety Act.