Throughout North America, Canadian occupational health and safety (OHS) agencies and US occupational safety and health (OSH) agencies administer and enforce worker protection laws. These laws require extensive employer efforts to protect employees – although in some situations it’s unclear which employer(s) are responsible for which workers. These complex situations include construction sites where one or more landowners or property occupiers hire one or more contractors to performer work. In November 2023 the Supreme Court of Canada deadlocked four-to-three-to-one in a case involving liability for a municipal “owner” that had attempted to contract all responsibilities (and potential liabilities) to the contractor (“constructor”) hired to repair a municipal water main, after a worksite death. (R. v. Greater Sudbury (City)) Because the Supreme Court deadlocked, the Ontario Court of Appeal decision finding the city liable becomes the law of the case, overturning many years of practice in which owners contracted-out OHS responsibilities to their constructors.
What were the inter-employer contractual provisions?
The City of Greater Sudbury, Ontario contracted with Interpaving Limited to act as constructor to repair a downtown water main. The contract stipulated that Interpaving would assume control over the entire project, including the assumption of the role of “constructor” under the Ontario Occupational Health and Safety Act (OHSA) and responsibility of ensuring that OHSA requirements were met.
What worksite incident occurred?
Work began in May 2015. On September 30, 2015 a pedestrian was attempting to cross at an intersection within the construction zone when she was struck and killed by a road grader as it backed up. Contrary to OHSA regulations, no fence was in place between the construction project workplace and the public intersection, and no signaller was assisting the equipment operator.
How did the subsequent case proceed?
The Ontario Attorney General (AG) prosecuted both the City and its contractor as both employers and constructors, each for violating six specific OHSA provisions. Interpaving plead guilty before trial. The City denied being an employer or constructor for this project, pleading innocent by asserting that its contract assigned responsibility to the contractor, which controlled the work subject only to periodic “quality assurance” inspections by the City that exerted no direct control over Interpaving or its employees.
At trial, the Ontario Court of Justice acquitted the City of all six charges, finding that the AG did not prove that the City did not exert worksite control so was not an employer or constructor on the project. Furthermore, the trial judge ruled that even if the City were an employer, it demonstrated that it met the OHSA “due diligence” requirement. The AG appealed to the Ontario Superior Court of Justice, which affirmed the trial court acquittal but did not address due diligence. The AG then appealed to the Ontario Court of Appeal, which set aside the lower court’s decision, found the City liable under OHSA as an employer, and remitted the question of the City’s due diligence to the appeal court to address. The AG then appealed to the Supreme Court of Canada.
The Supreme Court failed to reach a majority opinion, deadlocked 4-3-1 (the ninth justice did not participate):
- 4 justices would have found the City to be an “employer” – they reviewed the OHSA definition and found no reference to “control,” and found the City was employer of its quality assurance inspectors and also of Interpaving; they would have remanded for the lower court to determine whether the due diligence standard was met.
- 3 justices would have found the City to be the employer of its quality assurance inspectors but not of Interpaving or interpaving’s employees; they would have remanded to determine whether the OHSA regulations applied to the City’s role (i.e, did it have control over work performed near public ways or over the operation of vehicles, machines and equipment)
- 1 justice would have affirmed the trial court – City was neither an employer or a constructor
Since the Supreme Court could not reach a majority opinion, the Ontario Court of Appeal decision remains in place, including its order for the lower provincial court to review and determine whether the City managed due diligence.
What’s Next?
Within Ontario, entities that hire contractors should revisit the extent to which they’ve attempted to contract-out OHSA responsibilities. The same logic should also apply in other provinces, providing a good reminder to review the extent of control and/or oversight retained over contractors performing work for the host/owner entity. Entities should consider whether to retain some degree of formal involvement, in order to have authority to protect workers for whom they may eventually be found to have OHS responsibilities.
Self-Assessment Checklist
Does the organization perform work as a contractor to perform construction projects at or near any of the organization’s facilities?
- If so, what role, if any, do contracts retain for the (host/owner) organization covering employees of the organization and/or the contractor(s), as well as third parties, who may enter area where ongoing project work may produce hazards?
- If so, do contracts provide for cooperation between the host/owner and contractor on project activities that may affect workplace health and safety?
Does the organization perform work as a contractor to perform construction projects at or near its clients’ facilities?
- If so, what role, if any, do contracts with such contractors retain for the (host/owner) organization covering employees of the organization and/or the contractor(s), as well as third parties, who may enter area where ongoing project work may produce hazards?
- If so, do contracts provide for cooperation between the host/owner and contractor on project activities that may affect workplace health and safety?
Does the organization monitor ongoing projects to ensure that contractual terms relevant to OHS issues are followed?
Where Can I Go For More Information?
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com