Canadian Labour & Employment Law Blog | Owner’s Occupational Health and Safety Obligations

Owner’s Occupational Health and Safety Obligations

July 23, 2012
A. Paul Devine

Owners of commercial or residential property that are
engaged in a significant construction project may unwittingly assume health and
safety obligations.  A recent example of
this occurred in British Columbia, where former Premier Gordon Campbell was
found by the BC Workers Compensation Board to be a “prime contractor”
following the death of a roofer that was replacing the roof on a family
cottage.  This finding meant that he was
responsible for the health and safety of all of the workers on the job site. As
a result of the finding, he was also exposed to penalty sanctions that could be
levied under the Workers Compensation Act.

Prime Contractor (described as “Constructor”
in some provinces) liability for occupational health and safety issues may fall
on an owner who fails to specifically designate a party to coordinate health
and safety activities on a construction project.  The obligations are onerous, and normally
require health and safety expertise as well as a hands-on involvement in the
construction activities. Coordination of health and safety activities of
different sub contractors is of particular importance.

Provinces such as British Columbia and Alberta
specifically contemplate that an owner may designate one of its contractors as
the prime contractor so long as the designation is made in writing. The problem
for Mr. Campbell was that while there was a general contractor working on his
cottage, it was not designated in writing as the prime contractor. As a
result, the liability defaulted to him as owner of the property.  Other provinces such as Ontario similarly may
look to the owner of a construction project as the party responsible for health
and safety on the project.  In most
cases, the construction contract will be an important factor to determine the party responsible for health and safety
matters.

A recent case in the Yukon addressed this issue after
the Government as the owner of a large road-building project was charged as “constructor”
for the project. In similar wording to the legislation in Ontario, the Yukon Occupational Health and Safety Act provides
that an owner may be a “constructor” (and so responsible for health and safety
on a construction project) when it “undertakes all or part of a project by
themselves or by more than one employee.” 
As the result of a blasting incident, fly rock was blasted from the road
construction jobsite onto a nearby trailer court.  The Government of Yukon was charged by the
Director of Occupational Health and Safety as the constructor for the road
building project despite a voluminous contract which reposed these obligations
on the general contractor.  The charge
was upheld by the Yukon Territorial Court but reversed on appeal: see Director of Occupational Health and Safety
v.  Government of Yukon, William R.
Cratty and P.S. Sidhu Trucking, 2012 YKSC 47.  Mr. Justice Veale found that where the owner
hires a contractor to undertake a project as its constructor, the owner does
not undertake the project unless it explicitly takes back some of the
responsibilities that it contracted out.

These examples illustrate the liability which may
befall an owner of a residential or a commercial construction project if care
is not taken to appoint an appropriate party to undertake occupational health
and safety obligations.  Once the
appropriate party, normally the general contractor, is tasked to undertake
these responsibilities, the construction contract must specifically spell out
the appointment.

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