A Rock And A Hard Place: Owner, Employer, And Constructor Liability Under The OHSA

• Published date: 08 December 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Real Estate and Construction, Health & Safety, Trials & Appeals & Compensation, Construction & Planning
• Law Firm: McMillan LLP
• Author: Mr Patrick Groom

The decision of the Ontario Court of Appeal in Ontario (Labour) v Sudbury (City)¹ interpreted the definition of an "employer" to, arguably, broaden liabilities under the Ontario Occupational Health and Safety Act that had primarily been the responsibility of the constructor. While all parties on a construction project - owners, employers, and constructors - have always been collectively responsible for health & safety, the Court of Appeal's decision now implies that an owner, by virtue of having employees on site from time to time to ensure quality control, has equal responsibilities, and corresponding liabilities, as the constructor with whom the owner contracted to oversee project health & safety in the first place.

Background

The Ontario Occupational Health and Safety Act ("OHSA") is a quasi-criminal statute that delineates specific health and safety requirements for workplaces in Ontario. Generally speaking, the OHSA prohibits employers from contracting out of their workplace health and safety responsibilities.

There is one major exception to this general rule in the construction industry: where an employer or worksite owner contracts with a third party contractor, who takes on the role of "constructor" as defined by the OHSA. A constructor has its own responsibilities, separate and apart from an owner's and an employer's responsibilities, that require it to ensure health & safety policies and protocols are followed by all workers and by all employers who perform work on the project.

Put another way, an owner (as an employer) cannot contract out of its responsibilities for its employees, but an owner can contract the oversight of health & safety for all who are involved in a project to the constructor. While such an arrangement does not absolve the owner of overall responsibility for health & safety on the project, it provides the owner the ability to rely on a due diligence defence and claim that, in contracting with a constructor and ensuring the constructor fulfilled its health & safety obligations, the owner is not liable for breaches of the OHSA.

Courts will carefully consider the level of control, direction, and involvement of the owner to determine whether it or the constructor bears responsibility for a breach of the OHSA. Merely engaging a constructor will be insufficient for an owner to make out a due diligence defence. If an owner wishes take a "hands-off approach" to the administration of health & safety on a project, the owner must still...