The Ontario Superior Court acquitted the City of Greater Sudbury of two OHSA charges, overturning a trial conviction that rested on 'other steps were available.' The Court held that speculation about untaken measures cannot defeat a due diligence defence. The lesson for employers is about evidence, not luck.
A trial judge convicted the City of Greater Sudbury under the Occupational Health and Safety Act (staying a second count) because, in the trial judge's view, "other steps were available" — a more robust site inspection, a full walk of the site with the contractor.
On appeal, the Ontario Superior Court held that no such steps had been established in evidence at trial. The conviction was overturned and the City was acquitted on both counts.
For Ontario employers, Ontario (Ministry of Labour, Immigration, Training and Skills Development) v. Greater Sudbury (City) is not a story about getting lucky on appeal. It is a story about what a due diligence defence is actually made of.
The City owned a decommissioned flour mill site — six tall concrete silos, acquired roughly sixty years earlier, overgrown with vegetation and littered with hypodermic needles and other biohazards. It hired C.K. Construction to rehabilitate the site: clear the vegetation, remove the biohazards, repair the fence, and repair loose concrete and brick on the silos.
C.K. used a mobile elevating work platform. As the platform descended from about ninety feet with a worker in the basket, its left front wheel broke through a soil-covered concrete slab spanning an underground utility vault that nobody knew existed. The basket tipped and fell. The worker was seriously injured.
The Ministry of Labour charged the City under s. 25(2)(a) of the OHSA (failing to provide information, instruction and supervision) and s. 25(2)(d) (failing to acquaint a worker or person in authority with a hazard). Because OHSA offences are strict liability and the act itself was conceded, the only live question was whether the City had proven it took all reasonable care.
Justice Cornell worked through the governing authorities — R. v. Sault Ste. Marie, R. v. Gonder, and the Supreme Court's 2023 decision in R. v. Greater Sudbury (City), 2023 SCC 28 — and applied them to what the City had actually done.
An extensive search of municipal records disclosed no drawings or record of the underground structure. The site examination at project kickoff was limited by vegetation, accumulated topsoil, and the biohazards themselves. It was uncontested that the City had no knowledge of the vault. And even a complete walk of the site would not have revealed it: the surface was unremarkable and buried under topsoil, and C.K. had itself driven a skid steer over the area without noticing anything.
Three findings carry beyond the facts of this case:
Due diligence is not a standard of perfection. It is measured against what was genuinely within the accused's control, weighing the alternatives actually available and the extent to which the underlying causes were beyond reach.
Retaining a qualified contractor can discharge the obligation. The Court stated plainly that an owner or employer can hire an entity with the experience and expertise to undertake work the owner cannot safely perform itself. C.K. was hired precisely to remove the vegetation and biohazards that made a full site walk impossible.
"Other steps were available" must rest on evidence. The alternatives floated on appeal — Lidar survey, excavation — were not possible until the vegetation and biohazards were cleared, and none had been established at trial. Speculation about untaken measures is not a basis for rejecting a due diligence defence. Hicks Morley has flagged this as the operative point for employers.
Read the decision backwards and the lesson is uncomfortable.
The City won because there was a record. A documented records search that came up empty. A documented site examination and a documented explanation of why it was limited. A documented rationale for hiring a specialist contractor to do what the City could not safely do itself. The acquittal was built on evidence that existed before anyone was injured.
The City's records search and its reasons for hiring a specialist were part of the evidence that its conduct was reasonable. Contemporaneous records are how an employer proves due diligence, not a substitute for it.
This is the same principle running through Ontario's workplace harassment regime. Section 32.0.7 of the OHSA requires an investigation "appropriate in the circumstances," and as the OLRB made clear in Gassi v. County of Lambton, what gets scrutinized is the adequacy of the process and whether the decisions made along the way were supported by a reasoned explanation. Safety due diligence and investigation adequacy are the same discipline pointed at different hazards: decide deliberately, and write down why.
There is also a live cost dimension. Since January 1, 2026, the OHSA has included an administrative monetary penalty power, added by the Working for Workers Seven Act, 2025. So far it covers only one contravention, in public-sector construction procurement, but the government can add more by regulation. If it expands, the distance between a gap in your record and a financial consequence gets shorter.
Treat the pre-work record as the deliverable. Before high-risk work starts, document the records you searched, what you found, what you inspected, and what physically prevented a fuller inspection. That contemporaneous file is the defence.
Write down why you hired the specialist. If you retain a contractor because the work cannot be safely performed in-house, say so in writing, with the specific reason. The Court gave that reasoning real weight.
Disclose known and suspected hazards in writing. Consult available records, hand over what you have, and walk the site with the people you hired to the extent it is safe to do so — then record that you did.
Apply the same standard to harassment and conduct files. Where you narrow an investigation's scope or decline to interview a witness, document the reasoned basis at the time. "Appropriate in the circumstances" is assessed on the record you kept, not on the outcome you reached.
Audit the gap between policy and practice. Most organizations have the right policies. Fewer can produce the contemporaneous evidence that the policy was followed on a specific day, on a specific file.
This is general information, not legal advice — an OHSA charge or a serious incident should go to your legal counsel immediately. Our role sits earlier in the chain.
The organizations that survive external scrutiny are not the ones that never face an incident. They are the ones whose records show deliberate, documented decisions made before anyone was looking.
1205 Consulting builds that discipline into day-to-day HR operations through outsourced and fractional HR services, and arranges and manages independent workplace investigations with the documentation standard external adjudicators actually apply. If you are unsure whether a specific matter needs a formal investigation, start with our investigation assessment tool.
If you want an honest read on whether your current records would hold up under a Ministry inspection or a tribunal challenge, book a 30-minute call.
Beyond Advisory. Into Action.
In Ontario (Ministry of Labour, Immigration, Training and Skills Development) v. Greater Sudbury (City), Justice R. Dan Cornell allowed the City's appeal and acquitted it of two charges under sections 25(2)(a) and 25(2)(d) of the Occupational Health and Safety Act. The Court found the City had established the due diligence defence and that the trial judge's finding that "other steps were available" was unsupported by the evidence.
OHSA offences are strict liability offences. Once the prosecution proves the act occurred, the accused can avoid liability by proving on a balance of probabilities that it took all reasonable care in the circumstances. Following R. v. Sault Ste. Marie and R. v. Greater Sudbury (City), 2023 SCC 28, due diligence is not a standard of perfection and is limited to steps that were within the accused's control.
The Court held that an owner or employer can hire an entity with the experience and expertise to undertake work that cannot be safely performed by the owner itself. That is one factor in a due diligence analysis, not an automatic defence. The outcome still turns on the full evidentiary record of what the employer knew, checked, and disclosed.
Due diligence is proven with contemporaneous evidence, not with after-the-fact narrative. The City won on appeal because there was a documented record of the records search, the site examination, and its limits. Employers should be creating that record before an incident, not reconstructing it afterward.
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The two days after a harassment or misconduct complaint arrives are not an investigation. They are six decisions, each of which becomes part of the record a reviewer later reads. Here is what each decision is, what happens if you make it by default, and what to write down before you do anything else.
Every figure on this page comes from Statistics Canada, the Ontario Ministry of Labour, Tribunals Ontario, ISED or Job Bank, is linked to the page it came from, and carries its reference period. It is built to answer one question: how much HR and conduct risk is an Ontario employer actually carrying, and what does covering it cost?
A worker picked independent contractor status himself — for tax reasons — and signed a contract routing all disputes to the English courts. Ontario's Court of Appeal set the stay aside and sent the case home. If you engage Canadian workers as contractors, or you're a foreign parent staffing an Ontario team, this one lands on your desk.
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