Construction Work: An Additional Liability for Owner-Employers

This past November 10, the Supreme Court added another layer of liability to construction sites, pertaining to the owners of the premises. The highest court in Canada has ruled that, despite delegating all the work to a general contractor, the owner of the premises who has the status of an employer may incur criminal liability with respect to occupational health and safety (OHS) in the event of violations on the worksite. 

In a 4-to-4 split decision¹,  it was the Chief Justice who tipped the scales, setting the notion of “employer” as the cornerstone of criminal liability in OHS matters.

Under Ontario’s Occupational Health and Safety Act (the “Act”), a business is considered to be an employer if it employs one or more workers. Accordingly, the relationship between the owner and the general contractor, which is very common in the construction industry, does not usually fall under this definition. The owner requires a third party, namely the general contractor, to carry out and supervise the work on the site as a whole.

Setting the Context

In this case, the City of Sudbury (the “City”) awarded a contract to Interpaving Limited (“Interpaving”) for repairs to a downtown water main. Tragically, during the work, an Interpaving employee reversed a road grader, striking and killing a pedestrian. Despite the City’s absence of oversight of Interpaving’s workers, the authorities issued a statement of offence against the City, basing their argument on the City’s status as an employer. In the view of the prosecution, the City had failed in its duty to ensure compliance with a provincial regulation on construction projects.

Once the trial court and the provincial offences appeal court had acquitted the City on this basis, the Supreme Court ruled in favour of the Crown, arguing that it did not have to prove, beyond a reasonable doubt, that the owner of the premises, namely the employer, exercised oversight of the work that was carried out or of the workers. Its status as an employer means that it can be held liable; hence, it is up to the employer to show due diligence. The case was returned to the appeal court for a ruling on this point.

“New” Burden of Proof 

In the future, the Ministry prosecuting a business under this Act, which is very similar to Québec’s Act respecting occupational health and safety (“AOHS”), will simply have to demonstrate beyond all reasonable doubt that:

• 1. The business is an employer as defined in the Act at the time of the facts in dispute; and
• 2. The business has not implemented the safety measures prescribed by law or regulation.

The employer will then have to demonstrate due diligence in its defence. The Supreme Court of Canada considers that it is only at this stage that the absence of oversight of the workplace or workers may be taken into consideration. It should be noted that the Court clearly points out that this factor, rather than automatically leading to an acquittal, will instead be taken into account to ascertain the required level of diligence.

Accordingly, the owner of a site where construction work is being carried out may be held criminally liable simply because it is an employer as defined by the Act, even if it is not the direct employer of the workers conducting the work. The Greater Sudbury decision stems from a case involving Ontario law that is similar to Québec law; hence, it will surely have an impact on the interpretation of Québec’s occupational health and safety legislation.

This ruling is reminiscent of the Sobeys decision, in which the Court of Appeal of Québec held that an employer who had oversight of the maintenance of the premises was also responsible for the workers of other employers present at these premises.

If you have any questions, please feel free to contact our Occupational Health and Safety team.

[1] The quorumcoram comprised all nine judges of the Supreme Court, but Justice Brown did not take part in the final decision.