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Industry Perspectives Op-Ed: Court of Appeal decision in Sudbury muddies the waters on the term ‘employer’

Norm Keith
Industry Perspectives Op-Ed: Court of Appeal decision in Sudbury muddies the waters on the term ‘employer’

In a recent decision from the Court of Appeal for Ontario involving the City of Greater Sudbury (the City) several issues of importance were considered for safety at construction projects.

The critical question at issue was whether the owner of a construction project could be prosecuted as an “employer.”

There were potential serious implications and legal risk for owners, while confusing the responsibility of safety on Ontario construction projects.

The highest court in Ontario was specifically called upon to decide whether a municipality that contracted with a general contractor to do road repair works could be considered an “employer” as defined by the Occupational Health and Safety Act (OHSA).

The case arose out of a tragic workplace incident where a pedestrian was struck by a road grader that was operated by an employee of the general contractor.

The Ministry of Labour, Training and Skills Development (MLTSD), initially prosecuted the City both as a constructor and an employer, even though a contractor had filed a Notice of Project, confirming its status as a “constructor” under the OHSA on the paving project. The trial judge held that Sudbury was neither the constructor nor the employer of the employee who operated the grader that killed a pedestrian.

The trial held that the City owed no duties under the OHSA, resulting in a dismissal of all charges. This decision was affirmed on appeal by the Superior Court of Justice.

Then the Court of Appeal for Ontario granted leave to appeal to the court to determine whether the appeal judge erred in concluding that Sudbury was not an employer, abandoning the constructor charge.

The court had an opportunity to discuss how far the definition of “employer” under the OHSA should go. This case raised issues with respect to whether and when an owner, be it a municipality, a property owner, or a developer, who engages a general contractor to perform the role of a constructor under the OHSA, could also be prosecuted as the employer of the worker who operated the grader that killed the pedestrian. The arguments were based on the expanded definition of “employer” under the OHSA, which was recognized in a previous Court of Appeal decision of R. v. Wyssen.

Justice Brown granted leave to appeal and allowed the appeal on a question of law, but the full panel on the Court of Appeal declined to resolve that broader “employer” question for which leave had be granted.

In particular, the court said:

“Although, Brown J.A raised a broader question in granting leave to appeal to this court — whether ‘control’ is a requirement in cases where a municipality has contracted work to a third party — it is not necessary to resolve this question in order to decide this appeal. The City employed one or more workers at the project site and so assumed responsibilities as an employer under the act on this basis under the first branch of the ‘employer’ definition. Whether a municipality that contracts work to a third party must exercise control over that third party or its workers will be an employer under the second branch of the definition raises a number of issues that were not sufficiently canvassed in the parties’ submissions. In our view, it would be improvident to decide these issues on the record before us.”

One of the interesting arguments made by the City was that its employees were on site primarily dealing with quality control issues and therefore should be granted an exemption under section 1(1) of the OHSA that precluded owners from becoming a constructor simply because they had quality control employees on a construction project. The court rejected this argument and held that regardless of the purpose of the City employees on the project, quality assurance, safety or otherwise, the exemption did not apply to prevent an owner from being prosecuted as an “employer.”

This decision therefore does places legal risk for owners as an “employer” under the OHSA, without clear guidance of when, where or how.

Further, that owners are now exposed to a $1.5 million dollar fine under the OHSA but without guidance on how far that legal duty and risk of liability go is troubling. Safety on a construction project may be diminished when there is lack of clarity on who has responsibility for safety on a construction project.

With the court decision confusion, the MLTSD needs to show leadership on a better approach to clarify safety on construction projects, for municipalities and other owners.

I suggest a replacement of the “constructor” concept with a “Prime Contractor” safety concept used in many other Canadian jurisdictions. A Prime Contractor is the owner, or any other party designated as Prime Contractor, that usually, to either the general contractor or a project management company with safety expertise and capability for the entire project. This both clarifies and enhances the role and responsibility for safety on the construction project.

The serious problem with the Sudbury decision of the Court of Appeal is that municipalities and other owners do not normally manage safety on a construction project.

However, even if they have one quality control employee on the project, this court decision puts them at risk of being identified and prosecuted as an “employer.”

In the writer’s opinion, that was never the intent of the OHSA. Expanding the meaning of “employer” to include owners both usurps and confuses the role of “constructor” as defined under the OHSA. Therefore, the ruling of the Court of Appeal muddies the waters, confuses and conflates the role of the constructor, owner and employers under the OHSA.

In summary, the Court of Appeal decision in the Sudbury case is a very narrow, legalistic interpretation of the term “employer” under the OHSA. An owner may now be prosecuted as an “employer” of another employer’s workers. However, it does nothing to clarify, and does much to confuse, responsibility for health and safety of workers on a construction project.

Since the Sudbury case involved the fatality of a pedestrian, the safety of workers and the public is now more uncertain than ever.

One solution, adopted by many jurisdictions, and that I recommend, is the replacement of the “constructor” with that of a “Prime Contractor” under the OHSA. That works better, simplifies project safety and reduces legal uncertainty.

Over to you MLTSD for legislative reform.

Norm Keith is a partner at KPMG Law LLP and is one of Canada’s leading OH&S lawyers. Send Industry Perspectives comments and column ideas to editor@dailycommercialnews.com.

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