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Constructors have enhanced safety obligations

Regular monitoring, auditing of various work crew’s activities required



By Cathy Chandler

Constructors, also known as prime contractors or contractors, have significant legal obligations under occupational health and safety legislation. From a practical perspective, these terms refer to a general contractor or the party that has agreed with the owner of a work site to accept the responsibility of managing health and safety issues at the site.

In this context, the general duty on all prime contractors is to ensure the health and safety of workers and to comply with the relevant OHS legislation. Case law has confirmed that constructors and prime contractors are held to a high standard in meeting these obligations.

In Hydro Ottawa Limited v. Ontario (Ministry of Labour), the worker of a sub-contractor was fatally electrocuted while excavating holes for the installation of replacement hydro poles. The work was being performed underneath live power lines. Both the sub-contractor and Hydro Ottawa, the constructor, were charged by the Ministry of Labour. Hydro Ottawa appealed its three convictions on the basis that it had established due diligence through its written procedures and documents that indicated the crew was trained and would use a signaller. The trial court found that Hydro Ottawa needed to do more by way of exercising due diligence, including regular monitoring and auditing of the work crew’s activities, the later which it never did.

The appeal court agreed with the trial court and upheld all three convictions against Hydro Ottawa on the basis that it had not exercised due diligence.

This case tells us that it may not be sufficient for a constructor to simply collect documentary evidence from sub-contractors stating they are trained and will work in accordance with their written safe work procedures. Constructors must also engage in pre-planning consultations with their sub-contractors, as well as hazard communication and regular auditing of work crews. 

The responsibility of the constructor or prime contractor to ensure that all safety requirements are met by the appropriate party, by way of conducting regular audits and inspections, has been addressed in other health and safety cases across the country. These cases also demonstrate that audits and inspections are factors used by courts, boards and tribunals to determine whether a constructor exercised reasonable care.

In a case out of British Columbia, a large municipal employer, acting as prime contractor, appealed an order citing it for violating section 118(2)(b) of the Workers Compensation Act. This section directs that the prime contractor must co-ordinate activities on the site to ensure compliance with part 3 of the act and the Occupational Health and Safety Regulation. The order was issued after a WorkSafeBC occupational safety officer visited the site.  

The order alleging the contravention of section 118(2)(b) of the act cited a number of specific deficiencies by the prime contractor, including failing to conduct regular inspections of the work site and not holding site safety meetings with sub-contractors to communicate known hazards. The Workers’ Compensation Appeals Tribunal determined that the prime contractor had contravened the act, in part, because of its failure to conduct regular inspections of the work site to prevent the development of unsafe work conditions and no site meetings were held to address safety considerations.

This case is a further example that prime contractors must engage in regular inspections to demonstrate due diligence when it comes to ensuring the safety of their sub-contractor’s workers.

In the case of Southwest Construction Management Limited (Re), the Nova Scotia Labour Board upheld administrative penalties issued to the prime contractor because of alleged contraventions related to guarding and fall protection. In this case, there was evidence the prime contractor conducted regular safety inspections of the work activities of its sub-contractors. However, the board determined the prime contractor had not demonstrated due diligence because the deficiencies identified during the safety inspections had not been dealt with.

In this case, the prime contractor documented safety issues and concerns. However, it does not appear that steps were taken to adequately deal with the identified hazards and concerns. Not surprisingly, the board determined there was insufficient evidence to support a due diligence argument and the administrative penalties were upheld.

In Ontario (Ministry of Labour) v. Bay Grenville Properties Ltd. et al,, Bay Grenville was charged with violating its legal duties as a constructor in relation to a fatality at a construction project. Bay Grenville was acquitted of all charges on the basis that it had taken reasonable steps to comply with the applicable legislation under which it was charged. In this case, reasonable steps included evidence of adequate site inspections.

In discussing the role of a constructor at a project, the court in Regina v. Stelco Inc. stated that “the constructor’s obligations go beyond creating a system to inform the employees of their responsibilities. It must ensure the efficient operation of the system. Due diligence requires that the company establish that the person in charge is doing what he is supposed to be doing.”

Prime contractors have overall responsibility for health and safety on construction projects and work sites across Canada. They are exposed to the greatest legal liability in terms of safety-related incidents. Their health and safety programs must not be one of administration or policy, but of rigid enforcement.

This article originally appeared in the August/September 2019 issue of COS. 

Cathy Chandler

Cathy Chandler is a paralegal at Fasken in Toronto. With expertise in OHS and workers’ compensation law, she provides consulting, training and litigation support for organizations across Canada. She can be reached at (416) 868-7812 or cchandler@fasken.com.
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