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Legal Notes: Ontario Court of Appeal upends OHSA ‘employer’ designation

John Bleasby
Legal Notes: Ontario Court of Appeal upends OHSA ‘employer’ designation

Who is the ‘employer’ under Ontario’s Occupational Health and Safety Act (OHSA)? A recent ruling by the Ontario Court of Appeal could turn the traditional relationship between project owners and their hired contractors upside down.

The Corporation of the City of Greater Sudbury contracted a general contractor for road and watermain repairs. Under the contract, the GC was the “constructor” in charge of both day-to-day operations and compliance with OHSA regulations and guidelines. The city would occasionally send staff to the site, but only to inspect the quality of the work.

That’s a common arrangement with projects, the owner hires a “constructor” and lets them get on with the job, while the “constructor” abides with all applicable regulations and safety protocols.

However, a tragic incident occurred at the Sudbury site. A road grading machine operated by a GC employee struck and killed a pedestrian at an adjacent traffic light crossing. The Ministry of Labour conducted an investigation and charged both the city and the GC with several violations.

Sahil Shoor, partner with Gowling WLG, notes the charges brought against the city were due to its deemed role as both “constructor” and “employer.”

Charges included failure to provide neither a signaller to assist the driver of the equipment, a paid duty police to direct traffic or an overall traffic protection plan, and failure to erect a safety fence between the public and dangerous equipment.

At trial, the city was acquitted.

“The trial judge found it was ‘crystal clear’ that the GC was the ‘constructor’ and had ‘control’ over the project,” writes Shoor.

The crown went to appeal twice, insisting that the city was, in fact, the employer under the OHSA.

At the first appeal, the Ontario Superior Court of Justice upheld the trial court ruling, saying the city did not have sufficient control over the project to be deemed the employer. In fact, to do so would, in the court’s words, “change substantially what has been the practice in Ontario on construction projects.”

Not satisfied, the crown took their argument to the Ontario Court of Appeal, but was only permitted to speak to the city being the employer for the purposes of the OHSA. This time, the Court of Appeal ruled in favour of the crown.

“The court ruled that a party is an ‘employer’ for OHSA purposes if the party employs workers that are ‘directly employed or engaged by contract,’” writes Shoor. “According to the Court of Appeal, the project was a ‘workplace’ and the city was responsible for ensuring compliance with the OHSA in respect of all facets of the Project ‘workplace.’

“The court further stated that once an ‘owner’ is found to be an ‘employer’ on a construction project, it may be implicated in and prosecuted for any Ontario OHSA violation that occurs on a project.”

At face value, the implications of this ruling could be far-reaching, and leave many matters unresolved until determined by future case law.

“The court suggested that the issue of ‘control’ could become relevant in future cases,” Shoor writes.

For example, is an architect hired by the owner also deemed an employer or in “control” if they visit the project site to give direction to the GC or trades?

Shoor believes the risk is real.

“This is a possibility and something that both an owner and architect need to be fully aware of and prepared to take on as a responsibility,” he told the Daily Commercial News.

“The Court of Appeal did not consider evidence regarding whether the city, including its quality control inspectors, exercised any ‘control,’ or had involvement in the day-to-day management and operations at the project,” writes Shoor.

Nevertheless, Shoor suggests both the underlying contract structure and the wording of insurance policies, if applicable, need to be considered in light of this decision.

“Failure to account for these exposure points may trigger substantially more liability under the OHSA than the owner initially anticipated or contracted for.”

 

John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.

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