Health and safety responsibilities lie with contractors

But in the construction industry supervision can cloud the issue

Many contractors assume they have no responsibility for the health and safety of a subcontractor’s employees. After all, they’re not the contractor’s employees, so why would they be responsible for them? Before making such assumptions, a contractor should look carefully at its relationship with those who are doing the work.

In Ontario, the authority for a contractor’s responsibility over the health and safety of subcontractors comes from the Occupational Health and Safety Act. The act defines an employer as a person who employs one or more workers or contracts for the services of one or more workers. The definition includes a contractor or subcontractor who performs work or supplies services, as well as a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services.

A “worker” is defined as a person who performs work or supplies services for monetary compensation.

Window cleaner’s death provides case law example

The leading case on the practical consequences of these definitions is R. v. Wyssen. In this 1992 case, the respondent is a window cleaner contracted to clean the windows of four buildings. One of the buildings was beyond his capabilities, so he subcontracted the job to an experienced window cleaner. While performing his duties, the subcontractor fell to his death.

In finding that the respondent contractor was responsible for his subcontractor’s health and safety, the Ontario Court of Appeal stated that the definition of “employer” in the act covers two relationships. “Firstly, that of a person who employs workers and secondly, that of one who contracts for the services of workers.” The court further stated that the definition of “worker” applies equally to employment or independent contractor relationships.

After reviewing the principles of statutory interpretation, the court concluded: “the legislature clearly intended to make an ‘employer’ responsible for safety in the ‘workplace.’ The employer’s duty under the act and regulations cannot be evaded by contracting out performance of the work to independent contractors.” The act therefore puts the contractor in the position of an employer with respect to its subcontractor.

Challenging the act’s definition of ‘employer’

Subsequent Ontario decisions have found contractors to also be responsible for the health and safety of a subcontractor’s employees. In the 2005 case of R. v. Pioneer Construction Inc., the injured worker was an employee of an off-site subcontractor. He was injured by machinery under the control and supervision of Pioneer Construction Inc. In its decision, the Ontario Superior Court of Justice stated: “to interpret the definition of ‘employer’ not to apply to the appellant in the circumstances of this case would not be appropriate, fly in the face of common sense and undermine purposive interpretation of the statute.”

The constitutionality of this reasoning was analyzed in R. v. Grant Forest Products, a 2004 case before the Ontario Court of Justice. In this case, the defendant challenged the constitutional validity of the definition of “employer” in the act. The defendant argued that the definition of “employer” was so overly broad that it violated the Charter of Rights and Freedoms because it unnecessarily encompassed the activities of all “employers” who contract for the services of one or more workers.

The Ontario Court of Justice held that “if the intention of the legislature was to make an employer a virtual insurer of employee safety in the workplace, it does not appear to me that the legislation restricted liberty more than was necessary to accomplish that goal. Seen in that light, the legislation is neither arbitrary nor disproportionate.”

Things are little different in the construction sector

Despite the above-mentioned decisions, a contractor is not always responsible for its subcontractors’ health and safety. Ontario’s health and safety law creates a distinction between the general duties of owners, and owners’ duties in certain construction projects. Where a contractor assumes complete authority over the workers, he steps into the role of a “constructor” and will bear the responsibility for the workers’ health and safety.

The act defines a “constructor” as “a person who undertakes a project for an owner and includes an owner who undertakes all or part of a project by himself or by more than one employer.”

An “owner” is defined under the act as including “a trustee, receiver, mortgagee in possession, tenant, lessee or occupier of any lands or premises used or to be used as a workplace, and a person who acts for or on behalf of an owner as an agent or delegate.” If a contractor is either the owner or is an agent for an owner, the contractor will meet the definition of “owner”.

In the 1989 case of R. v. Stelco Inc., Justice Bennett quoted the analysis of a constructor’s duties from J. Stoller Construction Limited v. The Queen. In this 1986 case, a constructor was described as “the person who enjoys and can exercise the greatest degree of control over the entire project and all working upon it, in relation to ensuring compliance with prescribed safety methods and procedures. He plans and organizes the entire project. He has control over what contractors and subcontractors will be permitted to work and continue working upon it.”

How a constructor will be found to have stepped into the place of an owner is described in Stelco, where the Ontario Court of Justice stated, “the scheme of the act is to protect the worker. It obligates a person in authority, be he constructor, employer or supervisor, to take every precaution reasonable for the protection of the worker, and to ensure that a worker is not endangered.”

In a construction project, an owner should take care not to step into the constructor’s role. When an owner becomes involved in overseeing aspects of a worker’s duties, that owner may unwittingly place himself into the act’s definition of “constructor.” In Fibre Free Technology Co. v. 1062869 Ontario Ltd., the Ontario General Division found that the owner and the contractor were constructors.

As a result of the case law, a contractor should examine the role it intends to play in a project before determining that it has no responsibility for the health and safety of the workers.

Stuart Rudner practises commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or at [email protected]. Richard Oliver is a student-at-law with Miller Thomson.

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