The Latest in Labour Law: A Stewart McKelvey Newsletter – Onsite OHS liability: Who is (and who is not) the true constructor?

Peter McLellan, QC and Michelle Black

In a recent decision, R v McCarthy’s Roofing Limited, Judge Anne Derrick provided some much-needed clarity around what it means to be a “constructor” on a job site. This is critical as “constructors” have added responsibility extending to employees of all job site “contractors” for whom they have responsibilities.

The events

In early September, 2013, several contractors were working at a building construction project located on the Dalhousie University campus.

McCarthy’s Roofing Limited (“McCarthy’s”) was in the process of winding up its work on the site and, due to demands for employees and equipment to complete work on other projects, had to wrap up its participation over the first weekend in September. On Saturday, September 7, 2013, a McCarthy’s foreperson removed the weights and tether that were securing an outrigger beam located on the penthouse of the building. He admitted at the hearing that he did not have training on outrigger beam removal and, unfortunately, he did not tell anyone that the beam had been left in an unsecured state.

On Monday, September 9, 2013, an employee of Economy Glass (another onsite contractor), Paul Conrod, was seriously injured when the beam fell on top of him.

Subsequently, McCarthy’s was charged under the Occupational Health & Safety Act (“OHSA”) for (amongst other things) having failed as a constructor to take every reasonable precaution to protect the health and safety of persons at or near a workplace (sic “project”) and to ensure communication necessary to the health and safety of persons at the project. (McCarthy’s was also charged as an employer on two other counts but was acquitted for reasons outside the scope of this article on those counts.)

The defence

The key defence that McCarthy’s raised, and the defence which resulted in an acquittal of the above-mentioned charges, was that McCarthy’s was not a “constructor” as defined under the OHSA.

The decision

In considering McCarthy’s position, Judge Derrick discussed the relevant provisions in the OHSA, including the meaning of “projects” and “workplaces” and noted that the OHSA distinguishes between the two when referencing the obligations on constructors vs. contractors. Whereas contractors have prescribed responsibilities “at or near” the workplace, constructors have prescribed responsibilities “at or near” projects. Judge Derrick first clarified that constructors have broader authority and responsibilities than contractors and then looked to the evidence to determine whether it could be said that McCarthy’s was in fact a constructor.

The answer was “No”. While there were multiple contractors on site, one in particular (Aecon, the project construction manager, which was also charged in relation to the accident) was clearly the constructor, not McCarthy’s. In arriving at this decision, Judge Derrick listed some of the “indicia of authority” held by Aecon over the project, including:

• Control of the project site (including requiring McCarthy’s employees to gain admission to the site only through Aecon personnel);
• Communications hub for all trade contractors;
• Conduct of the site orientations for all workers;
• Oversight, control and management of the trade contractors;
• Chairing of the JOSH Committee for the project;
• Evidence that AECON directed compliance by the trade contractors with the new and enhanced safety measures;
• Central coordination for safety documentation required of all trade contractors (including Job Assessment Risk Review (JARR) cards and hot work permits); and
• Reviewing/auditing of completed JARR cards. (from paras. 140 and 141)

While she noted that it was possible that there could be multiple constructors on a project, Judge Derrick contrasted the level of authority possessed and exercised by McCarthy’s (vs. Aecon) and found that McCarthy’s authority was nowhere near the level required to find McCarthy’s was a constructor. McCarthy’s was therefore acquitted.

The significance

The differences in OHSA responsibilities as a contractor vs. as a constructor have not, as yet, been well explained and the fact that there is intentional overlapping responsibility through the OHSA regime makes the divide between the two all the more unclear. Even in this case, the Crown argued that both Aecon and McCarthy’s could be considered constructors. Judge Derrick’s decision is therefore a helpful guide to determining which entity (or entities) is/are properly considered the constructor(s).

One of the interesting points in this decision is that, after determining that McCarthy’s should be acquitted on all four counts, Judge Derrick then went on to discuss the fact that, had she decided McCarthy’s was a “constructor”, she would not have accepted its due diligence defence. This sends the message that, while McCarthy’s was not “guilty as charged”, it nonetheless should have been more careful in fulfilling its safety duties.

If there is any doubt about whether a contractor is responsible for the “project” or the “workplace”, the contractor will need to examine its level of authority and responsibility in the context of the other contractors onsite. Failure to do so could result in that contractor being left “holding the bag” when the OHSA assigns liability (i.e. lays charges) for an accident. Further, nothing in this decision changes the contractor’s responsibility to ensure that it is exercising due diligence through all stages of its own work.

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 practice group.