Tierney Stauffer LLP Lawyers

Employers have a duty to ensure the workplace is safe for their employees. The duties imposed on an employer vary depending on the environment but may include keeping employees informed of hazards, training, and safety protocols, and ensuring worker representation through the formation of a Joint Health & Safety Committee. If an employee is injured due in part to employer error, the employer can face significant fines and criminal charges.

When it comes to enforcing employer obligations in the workplace, construction sites present a unique challenge. Often, there are multiple parties involved in a construction project, at times including a municipality or city, various contractors, development companies, and trades. Given the various participants, it can sometimes be difficult to identify which party is an “employer” in the equation. This is a critical question when determining who is responsible for ensuring the health and safety laws are followed, including the Occupational Health and Safety Act (OSHA), and the related regulation Construction Projects, O. Reg. 213/91 (the “Regulation”), among others.     

In a March 2021 decision, Ontario (Labour) v. Sudbury (City), the Ontario Court of Appeal reaffirmed prior seminal jurisprudence regarding the roles of construction site stakeholders. More specifically, the Court examined the sometimes confusing determination of which parties involved in a construction project may be considered an employer.

Deadly Construction Violations

In the case at issue, a woman died after being struck by a road grader performing repairs at an intersection in downtown Sudbury. At first instance, the trial judge found that there was no signaller assisting the grader operator, and a fence had not been built between the public way and the worksite, both of which were in violation of the law. The grader driver was employed by a company, Interpaving Limited, which the City of Sudbury contracted to perform road repairs. The City additionally employed inspectors at the project site. The City and the paving company were both charged with violations of the Regulation and the OHSA, following which the City was acquitted in separate proceedings. The trial judge found that the City was neither an employer nor a constructor, and as such, did not owe duties under the OHSA.

“Employer” as Defined in the Legislation  

The Ontario Court of Appeal, however, concluded that the City was an employer and was therefore liable for the violations. This determination followed an analysis of the definition of “employer” as per the legislation. The Court agreed with the Crown that the OHSA, as public welfare legislation, “should be read liberally and broadly in a manner consistent with its purpose.” Importantly, the determination as to whether the City is an employer within the meaning of the Act, hinges on the application of the definition of employer in s. 1(1) of the OHSA:

“employer” means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services.

Referencing the seminal case, R. v. Wyssen, the Court pointed out that the definition of “employer” in the OHSA encompasses two relationships. The first relationship is that of the individual who employs workers; the second relationship refers to the individual who contracts for the services of workers. The Court thus concluded that someone “who employs one or more workers” is an employer for the purposes of the OHSA, and as such, is responsible for ensuring compliance with workplace rules and regulations.

Overlapping Responsibilities When There are Multiple Employers

According to the Court of Appeal, the OHSA not only establishes overlapping responsibilities for health and safety but also anticipates the possibility of multiple employers in a workplace, such as a construction site. Accordingly, the Court determined that a person or entity may meet the definitions for several different workplace parties. Consequently, this individual or entity is required to assume the responsibilities of each of those parties. With respect to the City’s role in the project in question, the Court said:

“The City employed one or more workers at the project site and so assumed responsibilities as an employer under the Act on this basis under the first branch of the “employer” definition.”

The Ontario Court of Appeal’s decision, in this case, reinforces the former case law on the issue of overlapping roles and duties in a construction project. The Court effectively established that any party to a construction contract or project cannot transfer its responsibility as an employer as per the OSHA’s definition, where it meets the criteria for “employer”. Even where a party is acting in several other roles besides that of “employer”, it is incumbent on the party to fulfill its duties as a construction employer at all times.   

The skilled lawyers at Tierney Stauffer LLP are experienced in businessemploymentalternative dispute resolution and litigation, which allows us to provide our clients with effective and practical advice in all aspects of construction law. Our construction lawyers will offer you personalized care and will develop the best solutions suited for your specific needs. Call us at 1-888-799-8057 or contact us online to schedule a confidential consultation.

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