Skip to content

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.

SHARE

Archive

Search Archive


 
 

Client Update: A Return to Reasonableness – Assessing Damages after Section D Settlements

April 4, 2015

An uninsured driver strikes another vehicle, injuring its occupants. These injured persons obtain a settlement from their own motor vehicle insurer (pursuant to Section D of the standard policy), and they assign their action against…

Read More

Atlantic Employers’ Counsel – Spring 2015

March 26, 2015

The Editors’ Corner Michelle Black and Sean Kelly Hello! We are very pleased to be the new Atlantic Employers’ Counsel (AEC) editors. We look forward to bringing you what we hope you will find to be interesting…

Read More

Client Update: The Employer’s implied contractual obligation to supply work: common law developments in employment law

March 10, 2015

Following several Supreme Court of Canada decisions in the late 1990s and early 2000s, the law of constructive dismissal was well defined – or so many thought. The Court’s decision in Potter v. New Brunswick Legal…

Read More

Client Update: Auto Insurance – Direct compensation for property damage is coming to PEI

March 5, 2015

In our May 20, 2014 client update, we reported on significant changes affecting automobile insurance in Prince Edward Island, including changes to no-fault benefits available under section B and changes to the damages cap for minor…

Read More

Labour and Employment Legislative Update 2014

February 10, 2015

2014 LABOUR AND EMPLOYMENT ATLANTIC CANADA LEGISLATIVE UPDATE As we move forward in 2015, we know our region’s employers will want to be aware of new legislation that has passed or could soon pass that…

Read More

Client Update: 2015 Minor Injury Cap

January 30, 2015

On January 28, 2015, the Office of the Superintendent of Insurance issued a bulletin in Nova Scotia. The 2015 minor injury cap has been set at $8,352, an increase of 1.7 per cent over 2014.…

Read More

Client Update: Outlook for the 2015 Proxy Season

January 29, 2015

In preparing for the 2015 proxy season, you should be aware of some regulatory changes that may impact disclosure to and interactions with your shareholders. This update highlights what is new in the 2015 proxy…

Read More

Client Update: Reaching New Limits – Recent Amendments to the PEI Lands Protection Act

January 6, 2015

During the Fall 2014 legislative sitting, the Province of Prince Edward Island passed legislation that results in significant changes to the Lands Protection Act. The amendments have just been proclaimed and were effective January 1, 2015.…

Read More

Atlantic Employers’ Counsel – Fall 2014

December 17, 2014

The Editor’s Corner Clarence Bennett This issue focuses on the family and the interaction between employment and family obligations. As 2014 comes to a close, I would like to extend Seasons Greetings to all of…

Read More

Client Update: Recent Developments: Disability Insurance Policies

December 17, 2014

RECENT DEVELOPMENTS: DISABILITY INSURANCE POLICIES & LIMITATION PERIODS IN NOVA SCOTIA Two recent Nova Scotia decisions have clarified the issue of limitation periods in disability insurance policies and “rolling” limitation periods.   THORNTON V. RBC…

Read More

Search Archive


Scroll To Top