There’s an important legal question currently hanging in the air: Who is the “employer” on a project site and therefore liable under Ontario Health and Safety (OHSA) regulations? Is it the owner or the contractor?
The matter remains unresolved as it now heads to the Supreme Court of Canada.
The case in question surrounds a tragic incident that occurred at a City of Sudbury worksite. A road grading machine operated by a GC’s 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. These included the failure to provide 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.
The trial judge ruled the contractor was the “employer.” The Crown appealed twice to the Ontario Supreme Court claiming the owner, ie. the City of Sudbury, was the both the “constructor” and the “employer” due to its nearly daily onsite supervision. The first appeal was lost. The court stated to reverse the lower court ruling would, “change substantially what has been the practice in Ontario on construction projects.”
However, the Crown was victorious on its second appeal, focussing strictly on the matter of who was the “employer” for the purposes of the OHSA.
As Sahil Shoor, partner with Gowling WLG told the Daily Commercial News in May 2021, “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 problem, as explained by Faren Bogach of Construct Legal, is that the Ontario Supreme Court ruling moves a lot of the risks associated with OHSA obligations to owners. Many of those responsibilities were long associated with the contractors since they were previously regarded as the “employers.”
In fact, Bogach says normal practise has been for owners to shift those OHSA responsibilities and risks to the hired contractor.
“Often, CCDC contracts were amended in Ontario to ensure that the contractor was the constructor as defined under OHSA.”
“The obligations of employers are broad,” Bogach continued. “There can be a lot of liability for owners if they attend onsite. Unfortunately for owners, it is not practical to avoid having representatives onsite, since owners and their representatives on occasion need to attend onsite to review progress and inspect work. The result of the Sudbury case is that owners are stuck in a position of being responsible for certain health and safety requirements even if they are not involved in the day-to-day construction.”
This could also lead to conflicts between owners and contractors regarding health and safety issues if both parties are responsible for the same requirements under OHSA, she says.
“The Ontario Court of Appeal decision appears to apply the legislation as drafted,” says Bogach. “Unless there is a change in the legislation, the owner is left with a due diligence defense. This means that owners will need to be extra careful and document their policies, procedures and actions in order to respond to any allegations of a breach of OHSA requirements.”
The Ontario Supreme Court ruling has left the matter of “employer” risk and liability under a cloud that has sent shivers up the spines of project owners who may not necessarily have full control and oversight over their projects on a day-to-day basis. It is now a question for the Supreme Court of Canada to resolve.
Furthermore, the risks could extend beyond owners and include project architects who may from time to time visit a site to oversee work. Shoor believes the risk is real. As he told the Daily Commercial News, “both owner and architect need to be fully aware and prepared to take on that responsibility.”
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.
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