Owner Exposure Under Ontario’s OHSA: The Supreme Court of Canada (SCC) will hear an appeal from the 2021 game-changing judgement of the Court of Appeal for Ontario (CAO)
In April, the CAO surprised many by its decision in Ontario (Labour) v. Sudbury, finding that the municipal owner of a road repair project, under the control of a general contractor constructor, was an employer and was therefore exposed, along with the constructor, for breaches of Ontario’s OHSA involving the death of a pedestrian struck by a grader when she entered the workplace. There was no signaller assisting the grader operator, nor was there a fence erected between the public way and the worksite, as required by the OHSA. On December 9, the SCC granted the municipality’s application for leave to appeal this decision.
Why did the CAO conclude the owner was an employer? The municipality had undertaken the not unusual step of having its own employees on the construction site conducting contractual QC inspections. The Court found that ss. 1(3) of the OHSA, which provides that an owner does not become a constructor by virtue only of the fact that the owner has engaged persons to oversee QC at a project, did not preclude owners from becoming employers.
The successful leave application is welcome news. Despite the legislature’s apparent intention in ss.1(3) to create an exception for owners, the COA’s decision left unanswered the question of how an owner could ever monitor QC without becoming exposed as an employer. “Employer” is defined broadly in the OHSA to include a person who either employs workers (first branch) or contracts with another to provide services (second branch). Here, the Court relied on the first branch, finding, “plainly”, that the municipality employed the workers conducting QC inspections. It observed that this finding was consistent with previous caselaw from the Court interpreting the breadth and effect of the employer definition. The Court specifically declined to address the question of whether the second branch would bare the same result in the situation wherein the owner exercised minimal, if any, control over the contractor, because: (1) it raised a number of issues that were not sufficiently canvassed in the parties’ submissions; and, (2) it was unnecessary in deciding the appeal because of the operation of the first branch.
Owner QC inspections are common place. They are essential to ensuring contractual value. Surely, within the context of a constructor exercising all reasonable care in meeting the requirements of the OHSA, owner QC inspections clothed within the ss.1(3) exception can be conducted without eroding workplace safety. Although employers should be strictly held to providing for the protection of their own employees and contractors conducting QC inspections, requiring more seems redundant, and, in the circumstances of this case, may have accomplished little to minimize the risk created by the constructor’s unlawful execution of the safety practices required of it.
Pending the SCC’s decision on the appeal, owners should proceed with caution, seeking legal advice, in the specific circumstances of each planned project, as to whether and to what extent they can rely on the exception created by ss. 1(3).