Occupational health and safety liability shifts to project owners

In a recent decision, the Supreme Court of Canada (R. v. Greater Sudbury, 2023 SCC 28) confirmed that project owners working under Ontario occupational health and safety legislation are now strictly liable for occupational health and safety (OHS) violations on construction sites, even when a general contractor assumes exclusive control over safety matters as the constructor.

This decision is groundbreaking. The traditional belief that a hands-off approach to health and safety by project owners protected them from liability no longer holds true. Instead, keeping a hands-off approach may increase the project owner’s exposure to OHS violations.

The impact of R. v. Greater Sudbury on occupational health and safety

This Supreme Court of Canada decision was a split verdict. Half of the court supported the Ontario Court of Appeal’s earlier decision, which held the project owner liable for a construction site death, despite the contractor being the constructor. The other half of the court would have reversed the lower court decision, but ultimately, given the Supreme Court of Canada was deadlocked, the Ontario Court of Appeal’s decision is upheld.

According to the supporting decision, even when a general contractor is appointed as the “constructor,” the project owner is considered an employer under Ontario’s Occupational Health and Safety Act. This employer status means the project owner has “strict liability” for OHS violations.

Therefore, if there’s an occupational health and safety violation at the construction site, both the constructor and the project owner are deemed to be automatically liable and the burden of proof shifts to the constructor and the project owner to demonstrate reasonable due diligence in managing OHS compliance. Successful due diligence will absolve the accused of liability.

What constitutes reasonable due diligence?

The Supreme Court’s supporting decision explains that reasonable due diligence concerning the project owner’s OHS obligations requires them to exercise due diligence “in their choice and supervision of the contractor.”

The supporting decision also indicated that factors to consider when evaluating due diligence may include:

• The project owner’s level of control over the workplace and workers.
• Whether the project owner delegated control to the constructor due to their own lack of expertise.
• Steps taken by the project owner to assess the constructor’s ability to comply with regulations.
• The project owner’s monitoring and supervision of the constructor’s work to ensure compliance.

Project owners must be proactive about occupational health and safety

Given the increased risk of liability for job site incidents, project owners should reconsider their hands-off approach to occupational health and safety management on construction projects. Consider these steps:

1. Adopt a contractor health and safety management policy that ensures an organized and consistent approach to safety management on construction projects to meet the test of reasonable due diligence.
2. Appoint the contractor as the constructor for larger projects or consult a health and safety expert to ensure compliance with OHS regulations when no constructor is appointed.
3. Evaluate the constructor’s health and safety record when selecting them to perform work.
4. Review the constructor’s health and safety policy and ability to develop a project-specific plan.
5. Require constructors to deliver a project-specific health and safety plan for the project as a condition of starting work.
6. Ensure constructors engage in regular monitoring of compliance.
7. Include language in contracts ensuring worker certifications, training records, and professional qualifications.
8. Monitor the constructor’s compliance with jobsite OHS requirements, and address observed instances of non-compliance promptly.

The necessity of the these actions for each project will depend on context. We recommend consulting with legal counsel on the appropriate steps for your organization.

Disclaimer

This article is not legal advice. It aims to inform readers about the Supreme Court decision’s principles. Consult legal counsel for a better understanding of the decision’s implications for your organization and an appropriate response.