The decision, issued November 10, 2023, by the Supreme Court of Canada (SCC), increases the legal risk of construction project owners for noncompliance with health and safety legislation on their worksites.
“This SCC decision is important for owners because it establishes their legal responsibility as employers and puts them at significant legal risk for health and safety enforcement and prosecution in the province for the first time,” says Norm Keith, Partner, Employment & Labour Law, at KPMG Law LLP, in an interview with IHSA Health and Safety Magazine.
“Prior to this case, an owner had very little legal responsibility for general contractors and sub-trades if they contracted with a general contractor or other party that took on the role of the constructor.”
Background on the case
The R. v. Greater Sudbury (City) (2023 SCC 28) case relates to the death of a pedestrian who was struck by an employee of the contractor hired for water main repair by the City of Greater Sudbury in 2015. The investigation determined that the worksite was missing required safety measures, including a fence separating the site from the nearby public intersection and a signaller to assist the worker driving the road grader.
The contractor was charged and convicted in separate proceedings for failing, as an employer, to ensure that the regulated health and safety measures and procedures were carried out in the workplace—as per section 25(1)(c) of the Occupational Health and Safety Act (OHSA).
The City of Greater Sudbury was also charged under section 25(1)(c) of the OHSA for failing to observe the same duty as the contractor. The City, as the owner of the construction project, disagreed that it was also an employer because it had given control of the project to the contractor.
While the court initially accepted the City’s reasoning, the Court of Appeal for Ontario allowed the Crown to appeal the decision and found the City to be liable as an employer under section 25(1)(c) of the OHSA. The City then appealed this decision to the SCC—who dismissed the appeal.
By upholding the decision, the SCC supported the viewpoint that owners also have a legal responsibility to comply with the duties of an employer. The City will have the opportunity to prove its due diligence in a provincial offences appeal court.
Takeaways for IHSA members
Construction project owners must now act as both an owner and an employer—in compliance with sections 25 and 26 of the OHSA—to fulfill their legal responsibilities on the worksite.
“The big picture question is about who is responsible for overall safety at a project,” says Keith, adding that the MLITSD inspectors and prosecutors now have the right to target both the constructor and the owner in the role of the employer if there is a health and safety-related incident on a worksite.
“The problem is that somebody needs to be in charge when you have the idea of due diligence.”
Increase health and safety involvement
Until a legislative amendment or further case law offers clarification about these roles, Keith recommends that project owners take the following steps to act with due diligence in fulfilling the legislative obligations of an owner and an employer.
Project owners should:
- Develop a pre-qualification procedure for evaluating constructors on their ability to competently manage health and safety at construction projects according to the requirements of the OHSA. Keith says that owners should select a constructor based on the highest quality in terms of safety rather than the lowest bid on price.
- Create a health and safety policy and an occupational health and safety management system (OHSMS) to implement that policy. Independent safety consultants may be helpful in developing an OHSMS. It may also be advisable to have the OHSMS legally reviewed and approved.
- Supervise and inspect the constructor’s safety performance continuously throughout the project and ensure health and safety standards and training requirements are fulfilled. Owners may hire staff or a third-party safety consultant to complete these inspections.
- Take action immediately upon observing or learning about any occupational health and safety issues at their projects.
- Establish consistent methods of accountability for the constructor and sub-trades should safety violations occur on the worksite. Keith says the expectations and consequences should be outlined in the contract and applied in the field at every project.
Assess contracts before signing
Constructors should get legal advice before signing contracts for projects because the SCC’s decision may cause owners to make additional demands of them, according to Keith. They should also get legal assistance with making a cost assessment if they take on additional responsibility on behalf of owners.
“Everyone should be committed to managing a construction project safely from a high-level,” says Keith. “Until there is some guidance from the MLITSD on if, when, and how they’re going to enforce this new, broader right they have to [prosecute] owners, we’re going to see IHSA members under a great deal of pressure in various forms to indemnify and protect owners and deal with the concerns that owners are going to have about this decision.”
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