In the June 2010 Ask an Expert column, lawyer Thomas Stefanik fields a question on employer liability in accidents
QUESTION: Our company, based in Ontario, recently contracted with a construction firm to undertake certain renovations on our premises. While the renovations were in progress, there was an accident involving a worker who turned out to be an employee of one of the sub-contractors hired by the contractor. Now our company, and one of our supervisors, is being charged personally with a violation of Ontario’s health and safety legislation and must appear in court. How can this happen when our company had nothing to do with the accident, and hired a contractor to look after that for us? Why aren’t the contractor and/or sub-contractor being charged?
ANSWER: This question raises a number of issues. First of all, it’s possible the contractor and sub-contractor actually have been charged. This happens routinely under the Occupational Health and Safety Act when charges are laid. When workplace accidents occur, it is common to see employers, contractors, subcontractors and even supervisors personally charged for alleged breaches of the act.
With respect to whether your company has a defence or not, or how you should deal with this matter, you should seek the assistance of a lawyer experienced in defending these types of charges. The specific facts in each case are very important. Your company may be able to claim it did its due diligence, but it will be required to prove that if it uses that defence.
It is not, however, a defence to say the company engaged another entity to look after the matter and therefore it should not now be faced with these charges. In reality, no one can contract out of their responsibilities or liabilities under the legislation.
With respect to the first court appearance, you must attend or appear by counsel or agent. However, normally at the first appearance, the case is adjourned to a date several weeks down the road. During that period of time, the Ministry of Labour will disclose all of the materials and investigation reports it has in its possession relating to the accident.
Your company can then examine the reports and make a reasoned analysis of whether it should consider going to trial or if it’s better to resolve the matter with the Ministry of Labour prosecutor. In making this analysis, because your company was not directly involved in the workplace accident and may not even have known about it for weeks or months after the fact, you will have to study carefully the disclosure the Ministry of Labour has provided to see what it will likely be able to prove. Your company will also have to consider whether it will have evidence to support any defence of due diligence.
Thomas Stefanik is head of the labour relations and employment law group at Torkin Manes LLP in Toronto. He can be reached at (416) 777-5430 or [email protected].
ANSWER: This question raises a number of issues. First of all, it’s possible the contractor and sub-contractor actually have been charged. This happens routinely under the Occupational Health and Safety Act when charges are laid. When workplace accidents occur, it is common to see employers, contractors, subcontractors and even supervisors personally charged for alleged breaches of the act.
With respect to whether your company has a defence or not, or how you should deal with this matter, you should seek the assistance of a lawyer experienced in defending these types of charges. The specific facts in each case are very important. Your company may be able to claim it did its due diligence, but it will be required to prove that if it uses that defence.
It is not, however, a defence to say the company engaged another entity to look after the matter and therefore it should not now be faced with these charges. In reality, no one can contract out of their responsibilities or liabilities under the legislation.
With respect to the first court appearance, you must attend or appear by counsel or agent. However, normally at the first appearance, the case is adjourned to a date several weeks down the road. During that period of time, the Ministry of Labour will disclose all of the materials and investigation reports it has in its possession relating to the accident.
Your company can then examine the reports and make a reasoned analysis of whether it should consider going to trial or if it’s better to resolve the matter with the Ministry of Labour prosecutor. In making this analysis, because your company was not directly involved in the workplace accident and may not even have known about it for weeks or months after the fact, you will have to study carefully the disclosure the Ministry of Labour has provided to see what it will likely be able to prove. Your company will also have to consider whether it will have evidence to support any defence of due diligence.
Thomas Stefanik is head of the labour relations and employment law group at Torkin Manes LLP in Toronto. He can be reached at (416) 777-5430 or [email protected].
