How much liability does the employer have for a contractor's conduct?
Question: Is an employer responsible if an independent contractor violates the employer’s safety protocols?
Answer: Issues of liability as between an employer and an independent contractor are complex and variable.
Relevant considerations include:
•Whether the independent contractor is properly characterized as such (as opposed to an employee, whether for all purposes or for purposes of specialized legislation such as workers’ compensation legislation).
•Where the violation occurred (raising the possible application of occupiers’ liability legislation that may relieve an employer/occupier from the consequences of an independent contractor’s negligence under defined conditions).|
•What type of work was being performed (such as whether the work was inherently dangerous or simply performed in an unsafe manner).
•What were consequences of the violation (raising possibilities for civil actions, workers’ compensation claims, occupational health and safety or criminal prosecutions).
•What were the terms of the contract (for example, has the contractor expressly agreed to comply with safety policies, obtain insurance or indemnify the employer for its acts or omissions).
•What were the relative degrees of knowledge and expertise between employer and independent contractor.
•What were the factual circumstances in which the violation occurred (whether the breach was intentional or negligent; whether the employer exercised appropriate care in hiring or supervising the contractor’s work; and whether there was adequate communication of the safety protocols through written policies; whether the policies were effectively enforced).
In very general terms, an employer is not vicariously liable for the acts or omissions of an independent contractor at common law (as distinct from statute), subject to certain limited exceptions as outlined in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. In Sagaz, the Supreme Court of Canada noted that vicarious liability is imposed where policy considerations dictate that one person be held liable for the actions of another because of the relationship between them. The employer-employee relationship typically attracts vicarious liability for acts committed by employees in the course of their employment; the employer-independent contractor relationship typically does not.
The recognized common law exceptions to this principle involve what are often described as non-delegable duties — those imposed by law personally on the employer of the independent contractor or those imposed by virtue of the particularly hazardous nature of the activities being performed by the independent contractor. Even in these cases, however, an employer held responsible for the conduct of a contractor may be entitled to indemnity from the contractor. This right to indemnity may arise either through an implied contract of indemnity or an implied contractual duty on the part of the independent contractor to take reasonable care: Hardisty v. 851791 NWT Ltd.
Without knowing the precise circumstances of the case, the most that can be said is that an employer may be responsible for the acts of its independent contractor that are in violation of the employer’s safety protocols. However, that responsibility will have less to do with the mere existence of a safety protocol than with the many other factors that may determine liability between an employer and its independent contractor.
For more information see:
•Farber c. Royal Trust Co., 1996 CarswellQue 1158 (S.C.C.).
•Wronko v Western Inventory Service Ltd., 2008 CarswellOnt 2350 (Ont. C.A.).|
•Russo v. Kerr Bros. Ltd., 2010 CarswellOnt 8373 (Ont. S.C.J.).
•671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 CarswellOnt 3357 (S.C.C.).
•Hardisty v. 851791 NWT Ltd., 2004 CarswellNWT 61 (N.W.T. S.C.).
