Construction stakeholders are calling for swift action from the Ontario government to address confusion over the health and safety responsibilities of municipal project owners in the wake of the controversial Supreme Court of Canada decision in R. v. Greater Sudbury.
The case stems from a 2015 incident in the northern Ontario city where a road grader driven by an employee of Interpaving Limited struck and killed a pedestrian while driving in reverse through an intersection. It was a municipal project.
In a 4-4 decision, the court confirmed an appeal of an Ontario Count of Appeal finding that a municipal project owner could be prosecuted under the Occupational Health and Safety Act (OHSA) as an employer on the project even if its role was limited to having employees onsite for quality assurance, as was the case on the Sudbury project.
Among the disparate responses to the Nov. 10 Supreme Court decision, construction consultant Clive Thurston is urging public project owners to boost health and safety due diligence on projects by ensuring all contractors are credentialled in top safety programs such as COR (Certificate of Recognition); construction lawyer Norm Keith is calling on Minister of Labour David Piccini to issue guidance to owners to clarify what their future roles will be; and project management consultant Jerry Crawford suggests there should be sector-wide consultation to determine who will be impacted and how, including the insurance sector and the WSIB.
“Right now it means there’s some level of shared responsibility,” said David Frame, executive director of the League of Champions. “And buyers of construction need to be aware of that when they start a project, and they need to have some sort of due diligence.”
“For now, Ontario municipalities and other owners of construction projects need to comply with the Court of Appeal decision and accept their dual role as an owner and employer on the project,” wrote Keith in an article analyzing the case. “In particular, it is important that project owners act in compliance with sections 25 and 26 of the OHSA, which outline the duties of employers.”
An owner could defend itself if charged as an employer by showing due diligence, with a strong health and safety management system in place, said Keith.
Takeaways in the first days after the decision include the following:
The legal community seems unanimous that the decision will have major implications. The firm Blake said the case will have “far reaching consequences for employers and project owners.”
“It puts everything in a great deal of confusion as to who has primary or overall safety responsibility,” said Keith in an interview.
Frame added, “It’s a huge story. There’s going to be a lot of discussion over the next few months about it. The industry needs to be aware of this and they need to be responding to it.”
Ontario General Contractors Association president Giovanni Cautillo said his association is currently studying how the decision will affect its members.
“With this decision comes a plethora of hypothetical questions, but very few practical answers,” he commented.
Thurston, former OGCA president, said he has taken calls from municipalities asking what they should do.
“‘What are we supposed to do? Do we have somebody there every day, once a week, once a month? What will constitute due diligence?’” he said. “’We don’t know what the rules of the game are.’”
A Ministry of Labour spokesperson acknowledged receipt of a request for information on the intentions of Minister Piccini but no response has been issued. A spokeperson for the Association of Municipalities of Ontario said the issue has been flagged and will be discussed later this week.
Keith suggests it’s time Ontario takes a cue from the western provinces and jurisdictions in the U.S. and clarifies the language it uses in legislation identifying “constructors” and “employers.” Those other jurisdictions use the term “prime contractor.”
“This clumsy, awkward and ambiguous term ‘constructor’ needs to be revisited,” said Keith.
“This case…says, even if I just have quality assurance people, I become not the constructor, because that’s exempted by the legislation, but I become the employer.”
Intent of the legislature
Keith was adamant that the ruling does not reflect the intent of the legislature. Rather, he said, it was one inspector and a “creative” prosecuting attorney in an individual case that swayed four justices of the Supreme Court.
“The act has been interpreted and the definition of employee has been interpreted so broadly that it’s a bit of a scattergram. It’s a mess,” he said.
“There’s never been any government paper, any government speech, any government Hansard statement in the provincial parliament that says, well, we want to go after municipal owners.”
Frame makes the point that the Ministry of Labour backed its Sudbury inspector and the prosecution on the case.
“They’re the one who pursued it, the ministry. And if it was inconsistent with the legislation, would they be doing that?” he asked.
Best courses of action
Off the top, “Owners should review this decision with their legal advisers and take the appropriate actions to ensure they are fulfilling their newly determined obligations as employers,” said Council of Ontario Construction Associations president Ian Cunningham.
Keith lists five steps owners-employers should now take. Among them, they should have a rigorous pre-qualification procedure to ensure the constructors they hire are fully competent in managing workplace safety, they need to develop a comprehensive safety management system, and they must have ongoing engagement, supervision and scrutiny of the work and safety performance of the constructor and its subtrades.
Contracts will surely have to be re-evaluated, the stakeholders say. Thurston said local construction associations should set up educational sessions involving lawyers and their members, “but we still don’t know what the ground rules are.” He said he has heard from several LCAs on this already.
Recommit to safety programs
Rather than hoping that Piccini announces the government intends to revamp legislation to exclude project owners from new health and safety responsibilities, Thurston said, the whole sector should recommit to workplace safety.
“I’m tired of owners not taking the responsibility seriously and figuring they can download it all to everybody else. Safety is everybody’s responsibility,” he said.
“This decision says now not only do you need to make sure those people you are hiring are competent, and how do you do that? Well, my answer to that is COR.”
Infrastructure Health and Safety Association CEO Enzo Garritano noted that since the IHSA launched COR in Ontario 10 years ago, there has been uptake among many buyers including Infrastructure Ontario, Metrolinx, the City of Toronto and the TTC, who require COR in pre-qualification.
“The SCC decision has spurred, and will continue to spur, more dialogue among owners regarding the establishment of due diligence in their role in health and safety on their projects including what they can do in their procurement process,” stated Garritano.
“Some have already reached out to us to discuss COR and health and safety management systems overall as components of a more robust and diligent contracting process.”
Follow the author on Twitter @DonWall_DCN.