The Ontario government is being called on to act decisively to clear up confusion in the construction sector over health and safety responsibilities in the wake of the Supreme Court of Canada decision in R. v. Greater Sudbury last November.
The 4-4 ruling expanded the definition of “employer” to include a project owner, casting aside 50 years of shared understanding of construction’s internal responsibility system, advocates say, and sending shockwaves through the sector.
Health and safety advocates including two construction lawyers told a League of Champions webinar audience Jan. 23 that legislation is needed to provide guidance to project owners or to introduce the more sensible system of responsibility lying with “prime contractors” that is used in Western Canada.
Or at least, they say, it’s imperative that the Ministry of Labour step in to clarify how it now intends to inspect and enforce Occupational Health and Safety Act (OHSA) regulations.
Not only will inaction result in continuing confusion, the advocates said, but workplace safety is bound to suffer.
“There has to be clarity,” said David Frame, executive director of the League of Champions. “It’s vital that we as stakeholders get together, decide on what we believe the answer is going to look like and take it to them and say, ‘We need your help there. It’s not good for health and safety, there’s confusion out there.’
“The government needs to give us direction.”
Construction lawyer Norm Keith, a partner with KPMG Law, said it was “disturbing” that the ministry pursued the case all the way to the Supreme Court of Canada, intending to make new law through litigation rather than the Ontario legislature. It was clear in court arguments, Keith said, that the government intended owners should become subjects for prosecution alongside constructors and trade contractors.
With more targets for prosecution, it will lead to “plea bargaining at its worst,” said Keith.
“I think you need a general guidance document” from the government, Keith said.
The decision “does not do anything, in my opinion, to improve health and safety, because what it effectively has done is create confusion, if not chaos, over who has overall responsibility for health and safety.”
The case has been sent back to a lower appeals court to determine whether the City of Sudbury undertook its role with due diligence. That will further delay a final decision on the Sudbury case said Annik Forristal, partner with McMillan LLP.
“I agree that legislative change to provide better clarity about the different project parties’ responsibilities would be extremely helpful,” said Forristal.
Meanwhile, said Keith, it is clear the role of the project owner has changed.
He offered five strategies for owners to adopt: owners must have a pre-qualification procedure and checklist; they need to have an effective occupational health and safety management system (OHSMS) in place at the project; they must have ongoing feedback systems under their OHSMS; they must enforce accountability under that system; and they must react immediately to any non-compliance awareness.
“The owner must react immediately when there’s any red flags, any near-misses, any complaints, so you need to have, as an owner, either your own staff or some other staff representing the safety consulting interests of the owner,” he said.
Frame said ensuring its contractors have COR safety certification could be one way for owners to comply with due diligence requirements.
Forristal said both owners and contractors are still trying to determine what the changes mean for them, with contractors asking, “Why is everyone freaking out?”
As for owners, the new responsibilities are numerous, but Forristal is advising them not to become overly prescriptive as they rewrite contracts and engage in new duties.
“If you have a laundry list of things that you’re expecting your contractor to do, and they fail to do one of them and you did not enforce that under your contract, you could be exposing yourself to risk,” she said.
A fourth panellist, Alex Ewing, executive director of the Ontario Construction Users Council, said he lamented the abandonment of the traditional internal responsibility system that Ontario has used for half a century, with its pyramid of responsibilities. Now, he said, it will be an “infinity loop” with neither the owner nor contractor solely in charge.
Another concern is when non-profits seek to act as project developers, said Ewing. They should be able to hire contractors to take the lead on projects without fear of prosecution under the OHSA.
To further highlight the current confusion, Ewing said, the ministry website contains an old statement describing health and safety responsibilities with the intent of the OHSA to have one person with overall authority for health and safety matters — but there is an asterisk indicating that the system is in transition.
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