'This may be a great place for HR professionals to add value and flag the issue for management,' says employment lawyer
A recent case out of the Supreme Court of Canada has many employment lawyers taking notice – but there are also important takeaways for HR leaders considering the potential implications around hiring, safety management, risk management and leadership.
In light of this decision, taking key steps gives HR the opportunity “to provide very proactive and sensible advice that shows that they're taking health and safety seriously and enabling the organization to avoid serious potential consequences in the future,” says Carey O’Connor, a partner at Hicks Morley in Toronto.
While this may mean more work for employers, it’s important to remember the objective, says Sahil Shoor, a partner at Gowling in Waterloo, Ont.
“What is of paramount and outmost attention is underlying safety, so that nobody's getting injured, and if folks are getting injured, how can that be reduced? And I think that's what it comes down to.”
Workplace accident leads to pedestrian death
The case involved the City of Sudbury in Ontario, which contracted with Interpaving Limited to act as a constructor to repair a downtown water main. During the repairs, an Interpaving employee struck and killed a pedestrian when driving a road grader.
The Ministry of Labour, Immigration, Training and Skills Development charged the City under Ontario’s Occupational Health and Safety Act for failing to ensure that certain safety requirements had been met.
While the City conceded it was the owner of the construction project and that it sent quality control inspectors to the project site to oversee Interpaving’s contract compliance, it denied that it was an employer, arguing that it lacked control over the repair work and had delegated control to Interpaving.
The provincial court trial judge agreed, acquitting the City because Interpaving had direct control over the workers and the intersection and therefore the City was not an employer under the Act.
And even if the City was an employer and breached its obligations, it acted with due diligence, according to the trial judge.
The provincial offences appeal court upheld the trial judge’s decision but did not address the finding that the City acted with due diligence. But the Court of Appeal disagreed and found the City liable as an employer, while remitting the question of the City’s due diligence to the provincial offences appeal court.
City of Sudbury ‘breached its duty’ as employer
And on Nov. 10, the Supreme Court of Canada delivered its verdict – in a four-four decision – to dismiss the appeal.
“The City was an employer and breached its duty under s. 25(1)(c) of the Act... While control over workers and the workplace may bear on a due diligence defence, nothing in the text, context or purpose of the Act requires the Ministry to establish control over the workers or workplace to prove that the City breached its obligations as an employer,” said the verdict.
In looking to maintain and promote a reasonable level of protection for the health and safety of workers and for public welfare, the OHS act allocates various occupational health and safety duties “among various classes of workplace actors, including constructors, employers and owners. These duties are often concurrent and overlapping,” said the Supreme Court.
“Under this approach, where multiple workplace entities fail to safeguard health and safety, they cannot point to others’ failures as an excuse for their own; each workplace participant must ensure that the workplace is safe.”
In the instant case, the City of Sudbury was an employer of the quality control inspectors, whom it employed directly and dispatched to the construction project. The City was also an employer of Interpaving, with whom it contracted to undertake the construction project, said the court.
“On the date of the accident, measures required by the [OHS regulation] — a fence between the construction work and the public way as well as signallers — were not carried out in the workplace. Thus, the City, as employer, committed the offence.”
Takeaways for HR: take ownership
As a result of this decision, Ontario municipalities and other owners of construction projects need to comply and accept their field role as both an owner and employer of the project, says Shoor.
“In my respectful view, an owner should no longer take a position that they have simply said to the contractor that they are responsible for occupational health and safety, and that is the constructor’s risk.”
Owners should also note that “the extent to which these employer duties have been delegated to a project constructor, a general contractor or a consultant on the project is an issue for consideration that would form part of their due diligence defense,” he says.
HR should also reach out to their health and safety professionals to evaluate roles and responsibilities, says O’Connor.
“Now's the time to evaluate who's responsible for what,” she says. “Ultimately, the starting point is to sit down and talk about the current division of responsibility between your institution and your general contractor in terms of who's responsible for what in safety, clearly define that, and make an evaluation of whether that makes sense in light of the decision. And that's going to be a highly contextual and individualized analysis, which is why I recommend engaging a professional.”
HR takeaway: reducing risks
Another key takeaway for owners is to ensure they have an effective occupational health and safety management system in place, says Shoor, “to be in a position to advance a strong due diligence defence in the event of work refusal or a complaint or an incident on the project.”
That should involve several key steps to reduce the risk of legal liabilities, he says.
“One of them is owner/employers having the rigorous prequalification procedure to ensure the constructors they hire are fully competent in managing workplace safety and construction projects properly.”
On that note, HR professionals could alert leadership that it may be time to evaluate the RFP process, says O’Connor.
“That's not squarely an HR responsibility but because HR professionals are very diligent and often keeping themselves abreast of case law, this may be a great place for HR professionals to add value and flag the issue for management, particularly because it's relevant to institutions that hire general contractors,” she says.
“A due diligence defence could be strengthened by an institution saying, ‘Well, we actually had four different bids, and we check the safety record of each of our bidders, and we only pick between the bidders who had the requisite safety record.’ That’s going to help, that's going to show you turned your mind to a conviction history [and] show that in your RFP process, you're turning your mind to the safety issues.”
HR takeaway: safety management
Another takeaway from the recent decision is the importance of having a comprehensive safety management plan “since an owner/employer cannot contract out of their statutory duty under the legislation,” says Shoor.
This should be developed with the assistance of an independent safety consultant and be legally reviewed and approved “to ensure that the plan exists, and not only does the plan exist, it is actually executed on the project. And if things are not getting executed, the plans are getting updated, because that would form key evidence in order to make out the due diligence,” he says.
The importance of an institution's due diligence defence is highlighted by the decision, according to O’Connor.
“If… an institution finds itself in a position where it's being investigated and charges are laid and you're defending against the prosecution… these are strict liability defences, the only defence is due diligence. And that's contemplated by the Act, so now's the time to sit down and figure out ‘What does our due diligence defense look like now? Do improvements need to be made to strengthen our due diligence defence? Can additional measures be taken to identify and remedy safety hazards?’” she says.
“This is an opportune time for HR professionals to apply that, to work with health and safety folks, to work with management, to evaluate the risks, and appropriately manage it in a sensible way, on a go-forward basis.”
HR takeaway: oversight
Finally, it would be advisable, as a project rolls out, to have “ongoing engagement, supervision and scrutiny of the work and the safety performance of the constructor, and the constructor's subtrades, to ensure that as the project is developing — and depending on what the constructor told them that they were going to do, which they took into account in order to come up with their own comprehensive plan — that it actually is working,” says Shoor.
“And if it is not working, [ask] why it is not working, what notices you're telling the constructor and its trades to ensure that safety is of paramount concern.”
In addition, the owner/employer must not only monitor but respond immediately to any OHS issues that they observe or that are brought to their attention at their projects, he says.
“There must be strict safety accountability of the constructor and subtrades by the owner/employer, in the form of warnings, of remediation costs, penalties, indemnities, and even removal from the site for safety violations.
“These steps ought to be delineated in the contract documents between owners and the contractors, so that everybody knows who's responsible for what on the project.”
