Owner Liability under the Occupation Health and Safety Act, as an “Employer”

The Ontario Occupational Health and Safety Act, R.S.O. 1990, c. O. 1 (the “OHSA”) serves as the legal framework in Ontario that addresses the health and safety of workers in the workplace. This article will explore the recent decision of the Supreme Court of Canada in R. v. Greater Sudbury (City), 2023 SCC 28, in which the highest Court in Canada decided that “owner” of a construction project can be considered an “employer” within the meaning of the OHSA. The consequence is that the owner may held personally responsible for OHSA offences. This decision is of particular importance because it opens up liability for owners of a project such as the owner of property.

The construction litigation lawyers and the employment litigation lawyers at Walker Law regularly assist clients in construction law and employment law matters. To help you understand how workplace safety laws and regulations are being interpreted in the construction law context, we explain what the Supreme Court’s recent decision may mean for those who are defined as the “owner” and “employer” under the OHSA.

Brief Background on the Case

On September 30, 2016, a woman died while attempting to cross a street in the City of Greater Sudbury, that was under construction. A sturdy fence of at least 1.8 metres in height was supposed to be present between public right of way and the street, but it was not.[1] The Ministry of Labour charged the City and the construction company under the OHSA and Regulation 213/91. The City was charged under the definitions of “employer” and “constructor”.

Procedural History of R. v. Greater Sudbury (City)

While the construction company was found guilty, the City was acquitted in separate proceedings. The trial judge in the City’s case concluded that the City was neither an “employer” nor a “constructor” and therefore, owed no duties under the OHSA.[2]

In R v. Greater Sudbury (City), 2019 ONSC 3285, the Crown tried to argue that the trial judge erred because the trial judge did not find the City to be an “employer” for having employees on the project, for the purpose of overseeing quality control and having significant control over workers on the site. The Court in R v. Greater Sudbury (City), 2019 ONSC 3285 concluded that  concluding that the city is an “employer” would substantially change the practice in Ontario with respect to construction projects.[3]

The Appeal was granted because the Court of Appeal decided that a person “who employs one or more workers” is an employer for the purposes of the OHSA. The City then appealed this decision to the Supreme Court of Canada, which upheld the decision of the Court of Appeal and dismissed the appeal.

The Supreme Court stated that “even where an owner gives up control to a constructor, that same owner can have duties as an employer that may at times overlap with the constructor’s duties. While s.1(3) [of the OHSA] prevents an owner who sends inspectors to a worksite from becoming a “constructor”, it does not prevent the owner from being an employer.”[4]

Further, the Supreme Court stated that “employers are required to ensure compliance with all applicable regulatory measures”. […] Where however, a particular measure is silent concerning to whom it applies, the measure applies when it relates to work that the employer controlled and performed through their workers. This relationship is established when the employer has authority over the performance at task, usually because it is the portion of the work within the larger project, whether alone or with other parties, they have been entrusted with performing through the workers they have employed or contracted for.”[5]

What does this mean for you, as a project Owner?

The Supreme Court’s ruling will affect the construction law and the construction industry immensely given that “owners” of a project may potentially be held responsible under the OHSA for workplace safety violations (subject to a due diligence defence). Therefore, owners may need to review their contracts, to ensure what they will have control over, is clearly defined, and assume a more proactive role in construction disputes and in a project as it is no longer sufficient to delegate the task to a contractor.

A review of your contract with your contractor can be a proactive step in construction disputes. If you or someone you know is considering how this decision may affect you as a project owner, please contact the construction dispute lawyers at Walker Law.

[1] R v. Greater Sudbury (City), 2019 ONSC 3285, Paragraph 12

[2] R v. Greater Sudbury (City), 2019 ONSC 3285, paragraph 20

[3] R v. Greater Sudbury (City), 2019 ONSC 3285, paragraph 33

[4] R. v. Greater Sudbury (City), 2023 SCC 28, paragraph 45

[5] R. v. Greater Sudbury (City), 2023 SCC 28, paragraph 150

Tags: Construction Disputes, Contract Disputes, Commercial Litigation Lawyer

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