Can owners rely on constructors to ensure compliance with health and safety regulations on construction worksites anymore?
Ontario’s Ministry of Labour’s (MOL) guidelines are clear: the intent of the Occupational Health and Safety Act (OHSA) is to have one person with overall authority for health and safety matters on a construction worksite. This person is called the constructor and is a role typically assigned to the general contractor who is given full control over health and safety matters on a construction worksite.
As stated in OHSA, it is the constructor’s legal responsibility to ensure that all the employers and workers on the project comply with the Act and its regulations.
The Ontario Court of Appeal’s April 2021 decision in Ontario (Ministry of Labour) v. Corporation of the City of Greater Sudbury (2021) has seemingly turned this principle on its head by holding an owner-employer jointly liable for a constructor’s breach of health and safety regulations on a jobsite in the city of Sudbury.
The decision: Ontario v. City of Sudbury (2021) ONCA 252
Ontario (Ministry of Labour) v. Corporation of the City of Greater Sudbury concerns the death of a woman struck by a road grader performing repairs at an intersection in downtown Sudbury. The general contractor, the constructor, had failed to implement measures required by the health and safety regulations which led to this woman’s death.
MOL charged both the contractor and city for violations of OHSA. The contractor admitted liability and was thus not part of the court proceedings appealing the MOL’s charge.
City appeals to the Ontario Superior Court
The city of Sudbury appealed MOL’s charges to the Ontario Superior Court of Justice (ONSC).
MOL took the position that, in addition to the contractor, the city of Sudbury, the owner of this project, was also a constructor and employer on that worksite. It claimed Sudbury was a constructor due to the amount of control it exercised over the general contractor through the rights reserved under the contract. It also claimed the city had the obligations as employer under OHSA because city employees performed project inspections at the jobsite. This activity meant the construction worksite was a “workplace” for those employees for which the employer-city had health and safety obligations under OHSA.
MOL lost both arguments.
The ONSC judge understood it was not the intention of the parties to have the city retain any OHSA obligations for the construction jobsite and pointed to the fact that there had never been a case in support of Ontario’s position. In the judge’s words: “It would change substantially what has been the practice in Ontario on construction projects”.
MOL appeals to Ontario Court of Appeal
MOL was undeterred.
It appealed the finding on whether the city has health and safety obligations at the jobsite as employer. (MOL would have appealed the decision on the constructor issue but, apparently, legal technicalities prevented it from doing so.)
The Court of Appeal agreed with Ontario. It found the city was an employer for purposes of health and safety requirements at the construction site because the city had deployed inspectors to the worksite to review the general contractor’s work. This meant the construction site was a workplace for those inspectors and the city, as employer of those inspectors, had health and safety obligations at the construction worksite.
The city could avoid the MOL charges by demonstrating it exercised due diligence to avoid health and safety violations that led to the incident. ONCA did not have jurisdiction to hear the city’s arguments in this regard so it remitted this aspect of the proceedings back to the lower court.
Impact of The ONCA Decision
Prior to this decision, allocation of responsibility for compliance with health and safety regulations on the construction jobsite was generally clear; the constructor assumed full responsibility and the owner took a hands off approach. Owners did not interfere for fear of being the deemed constructor and held liable for OHSA violations.
This decision holds any owner that deploys staff to the jobsite responsible for the constructor’s OHSA violations. ONCA’s decision doesn’t clarify how far the owner-employer’s obligations over health and safety at the jobsite reach, however. For example: is there a complete overlap between the employer’s obligations and the constructor’s obligations? Is the employer now liable for all constructor violations? Is it necessary for the employer to monitor and oversee the constructor’s health and safety program?
The ONSC hearing on the city’s due diligence defence will hopefully clarify these issues.
Who’s responsible construction worksite health and safety?
This decision has understandably caused alarm among owners who have historically felt protected by the shifting of responsibility for jobsite health and safety to the construction contractor. Those owners now place themselves in MOL’s crosshairs when deploying employees or other workers to perform jobsite inspections on the owner’s behalf.
Reading between the lines of the decision, it may be that Ontario and the Court of Appeal felt the public is not being served by owners’ traditional hands-off approach to health and safety at the construction site. By finding a way to hold owner-employers jointly accountable for OHSA compliance on the jobsite, Ontario and the courts may be taking the position that, in jobsite health and safety matters, holding both parties accountable will produce a better outcome for those whose health and safety OHSA seeks to protect. It will certainly be interesting to see what the ONSC has to say!