This is part-one of a two-part op-ed outlining an ever-evolving safety landscape in Ontario and across the country after the monumental Sudbury court decision.
Since we received the absurd non-decision by the Supreme Court of Canada in regards to the City of Sudbury case, there have been numerous and continue to be many presentations about what, if anything, stakeholders can do to protect ourselves.
There is no question what has been decided is that owners can and will be charged as the constructor. What is not clear and has been referred back to the Ontario court is what actually constitutes a due diligence defence.
We are seeing numerous clauses being written by law firms across the province to try and address this issue. And it is a very fine line that everyone has to be careful of.
First, if one goes too far it simply confirms the owner has a role in the project and is therefore likely to be charged.
Two, if it doesn’t go far enough ensuring adequate application of the OHSA, again the owner could be charged for not doing enough.
Contractors will face ever-demanding responsibility for health and safety on projects. Collectively none of us are sure who is actually supposed to be responsible for health and safety, which is resulting in a dangerous climate of uncertainty.
It is obvious the Ministry of Labour has no intention of acting quickly to provide clarity now that they can charge owners when a workplace injury occurs. This leaves everyone to try and do the best they can to understand and deal with this issue.
One of the things essential to ensuring health and safety on construction sites and in any business is having an Occupational Health and Safety Management System (OHSMS) in place to ensure the very best standards are being met to protect workers and ensure they go home safe at the end of the day.
It is recommended owners employ a strong prequalification process that requires the constructor to have achieved an accredited health and safety certification such as COR or 45001 COR equivalent.
Recognizing properly accredited certificates has been confused by the ministry’s lack of forethought and its refusal to listen to the industry and professionals as to what constitutes an accredited health and safety certificate.
The requirement of a CSA recognized accreditation is one the ministry must deal with immediately or more non-legitimate programs will be sold to contractors who want something easier, faster and cheaper. Owners can contact IHSA to find out about ensuring the certificate they are receiving is CSA accredited.
Everyone as industry stakeholders needs to build a strong case for a due diligence defence should they be charged. The best defence is to be able to prove that you have acted to implement and enforce health and safety on your projects.
But how can you ensure the programs put in place will be followed? Can you be sure all of your employees have adopted a belief in those systems and programs and are following them? Or, as is often the case, did people just read them, file it and forget it, which opens the door to catastrophe.
Years ago, the OGCA recognized that ad campaigns being run by the government, coupled with higher fines and threats were doing nothing to improve health and safety on construction sites.
Today that mentality continues with Bill 88, legislation developed without employer input, that simply seeks to punish people rather than improve health and safety incentives and address any weaknesses within the system.
It condemns not just the worst players but the best players to unfair prosecution and penalties that cost people their livelihoods, deter employees from accepting supervisory positions and potentially the survival of the company itself.
I believe we have to focus on the culture of health and safety and change how people think.
We were pleased that the WSIB agreed with this philosophy and helped adopt and promote this concept. It became the mainstay in our industry ever since. A culture of health and safety is essential to building the foundation necessary for an effective OHSMS for owners and all stakeholders in the industry.
Clive Thurston is president of Thurston Consulting Services Inc. Send Industry Perspectives Op-Ed comments and columns ideas to editor@dailycommercialnews.com.
ISO 45001 is an international standard for health and safety at work that enables organizations to provide safe and healthy workplaces by preventing work-related injury and ill health, as well as by proactively improving its OH&S performance.
Being ISO 45001 certified enhances due-diligence, stakeholder perception, cost reduction, OHS improvement, process improvement and overall organizational performance excellence.