Client Update: Who is a constructor?

Mark Tector and Richard Jordan

The Nova Scotia Occupational Health and Safety Act (the “Act”) provides that “contractors” and “constructors” have similar, but not identical, responsibilities, with a “Constructor” having greater authority and more responsibility for the health and safety of those working “at or near a project”. Determining who is or who isn’t a “constructor” has not always been clear. However, two relatively recent decisions from the Nova Scotia Provincial Court have gone a long way in clarifying matters.

Both decisions stemmed from a September 2013 accident during the construction of a new building at Dalhousie University when an unsecured outrigger beam fell several floors and caused catastrophic injuries to a worker.

The first decision from 2016 involved the acquittal of McCarthy’s Roofing of four charges as a result of the accident: R. v. McCarthy’s Roofing Limited, 2016 NSPC 52. Stewart McKelvey provided this analysis with respect to Judge Derrick’s decision.

More recently, Aecon Construction Group was found guilty of breaching the Act and sentenced to a $35,000 fine (plus 15% victim surcharge) and a payment of $15,000 to the Nova Scotia Construction Safety Association so that they could prepare presentations regarding the proper safe assembly, disassembly, securing and storing of swing stages. Judge Lenehan’s 68-page decision found that Aecon was a constructor and it had breached the “general duty” provision of the Act, which required it to take every precaution reasonable to ensure the health and safety of a person at a workplace.

Judge Lenehan’s decision is significant for employers for two reasons:

1. As noted above, the differences in responsibilities under the Act between a contractor and a constructor are a little unclear. Following McCarthy’s Roofing, the Aecon decision provides further guidance on how the Court will assess whether an entity is a constructor, which is defined in the Act as “a person who contracts for work on a project or who undertakes work on a project himself or herself.” Judge Lenehan explained:
   • The Court must look at the role of the alleged constructor on the project, both individually and in contrast to other persons on the project and examine their level of authority and responsibility for a project or workplace in the context of the other contractors on site.
   • Under the terms of Aecon’s contract with Dalhousie to act as Construction Manager, Aecon:
     – controlled the scheduling of work on the project;
     – monitored the progress of the work;
     – directed the work of the trade contractors and reviewed the
     latter’s performance;
     – was responsible for establishing and overseeing health and
     safety on the project.
   • There is nothing in the Act which says that there can be only one constructor on a project (a point which Judge Derrick first made in McCarthy’s Roofing).
2. Judge Lenehan’s decision confirms that where an entity is charged with an offence under the general duty of the Act and the Crown proves that the entity has not taken every precaution reasonable in the circumstances, it has negated any due diligence defence.

Offences under the Act are strict liability offences so the defendant can generally try to establish on a balance of probabilities that it exercised due diligence. However, this was not open to Aecon because exercising “due diligence” means acting without negligence or taking all reasonable care. Therefore, the fact that the Crown had already proven that Aecon had not taken every reasonable precaution regarding the disassembly, securing and storing of the swing stage meant that Aecon could not seek to defend against the charge on the basis that it had taken all reasonable care.

What does this mean for you?

The clarification from the Court should assist employers in determining and understanding their OHS responsibilities at a workplace and on a project. Also, a key takeaway is to have a clear agreement in relation to any construction project and identification of each party’s status and responsibilities.

The foregoing is intended for general information only. If you have any questions about how this may affect your business, please contact a member of our Labour & Employment group.