Construction project owners potentially liable as ‘employers’ under Ontario’s Occupational Health and Safety Act

A recent split decision of the Supreme Court of Canada carries significant implications for construction project owners. As a result of the split decision, a 2021 Ontario Court of Appeal decision remains in place and its findings mean a construction project owner that employs quality control staff to oversee the work of a general contractor may be an “employer” with liability, overlapping with the “constructor”, for overall construction site health and safety under Ontario’s Occupational Health and Safety Act (OHSA). 

In 2015, the City of Greater Sudbury (Sudbury) contracted with a general contractor to perform watermain repairs in the city’s downtown area. As is typical in such contracts, the contract required the general contractor to assume the role of “constructor” under the OHSA. When one of the general contractor’s employees driving a road grader tragically struck and killed a pedestrian, Ontario’s Ministry of Labour charged both Sudbury and the general contractor with violating their duties as “constructor” and “employer.”

Following lower court decisions that held Sudbury was neither an “employer” nor a “constructor”, the Ontario Court of Appeal found Sudbury to be an “employer” on the basis that it employed quality control staff that attended the construction site and, as such, Sudbury was responsible for ensuring compliance with OHSA workplace safety measures for the construction site. The four justices of the Supreme Court of Canada who upheld the Ontario Court of Appeal decision went even further than the Ontario Court of Appeal, suggesting Sudbury was also an “employer” by virtue of having hired a general contractor (and thereby contracted for the services of the general contractor’s workers).

For more insight into the potential ramifications of the decision and the Court’s reasoning, read the full post on our Construction and Infrastructure Law Blog.