Who’s Liable for Safety Violations at Sites with More than One Employer?
There are hazards at every workplace. The OHS laws impose duties on persons in the position to control those hazards, including the owner of the site, the contractors who work there and the workers themselves. But primary responsibility for health and safety at the site falls on the employer. Carrying out the employer’s many responsibilities under the OHS laws is simple enough when all the workers on a site work for the same employer. But some workplaces contain a mix of workers who work for different employers.
Typically, the mix includes the employer that owns the workplace and one or more contractors hired by the employer to do specialized work, such as installing or servicing machinery. Even though it will be done at the employer’s workplace, the contractor may control the work. So who’s legally responsible for ensuring that the work is done safely and in accordance with OHS requirements—the contractor or the employer? This complicated question turns on not one but three sets of factors:
This article will explain what safety coordinators need to know about the law of multi-employer site liability so they can evaluate their company’s liability risks when using contractors. In Part 2, we explain how to manage those risks.
What the OHS Laws Say
To figure out who’s responsible for health and safety at a workplace that includes multiple employers, you need to look at the OHS laws of the province or territory where the work is done. The rules are different in each place. But as a general matter, the OHS laws all start at the same point: Responsibility for the health and safety of the employer’s and contractor’s workers falls ultimately to the employer that owns the workplace (which, for the sake of simplicity, we’ll refer to throughout as the “employer”).
Where Does This Liability Come From?
Wyssen & the Definition of ‘Employer’
The OHS laws require “employers” to take measures to safeguard the health and safety of the people who work for them. In many provinces, the definition of “employer” goes beyond just workers on your payroll; it includes other individuals that work for you, such as the workers of the contractors you hire.
The concept of extending the liability of an employer to cover the workers of a contractor on the site comes from a 1992 court case called R. v. Wyssen. In that case, an Ontario court ruled that a window cleaning company was responsible for a subcontract worker’s fatal fall from an improperly secured boatswain’s chair, even though the subcontractor possessed expertise on window cleaning and supervised the work.
The Wyssen doctrine applies in other provinces, including BC and AB (assuming there’s no prime contractor arrangement, which we’ll explain later) and SK. Example: A SK mining company hires a contractor to repair a vat containing a potash/water mixture heated to 90º C. Three of the contractor’s workers fall through a section of the vat cover. Two of them are killed; the third suffers severe burns. The company had warned its own workers of the danger but not the contractor’s workers. As a result, the company was fined $300,000 [R. v. Potash Corporation of Saskatchewan].
Other provinces impose the same obligation but in a slightly different way. Instead of using an extended concept of “employer,” they say that the owner must protect anybody at their workplace against hazards—not just the workers on their payroll. For example:
Delegating Liability to Contractors
Remember, the rule making the employer who owns the site liable for safety when there are multiple employers on the site is just the starting point. It’s the default rule that applies unless the employer who owns the site specifically and expressly delegates responsibility for safety and risk of OHS liability to the contractor.
Delegation makes sense when the contractor is more qualified to control the work and manage the risks. The contractor’s qualifications are often the very reason the employer decided to use the contractor in the first place.
But delegating responsibility for safety to the contractor raises major legal issues. The first thing the employer must do is make sure it’s even legal to make such an arrangement. The good news: Every province allows employers to delegate responsibility for safety if the work involves construction. The bad news: If the contract doesn’t involve construction, the employer might be out of luck. More bad news: Even an employer that is allowed to enter into such an arrangement might not get as much protection from liability as it thinks.
The 3 Kinds of Delegation Rules
The OHS laws define how much leeway the employer has to delegate safety-related responsibilities to a contractor. Although the rules differ from province to province, there are three general approaches:
The 3 Non-Construction-Specific Jurisdictions: Let’s start with the easiest one to understand. Three provinces—AB, BC and NB—give employers the right to delegate responsibility to the contractor. More precisely, employers may designate a contractor as the “prime contractor” (in AB and BC) or “contracting employer” (in NB) responsible for controlling the work and ensuring compliance with the OHS laws. These arrangements can be made for construction and other kinds of work. If the contract doesn’t designate a contractor as “prime contractor,” then Wyssen applies and the employer remains on the hook.
Caveat: Making a prime contractor arrangement doesn’t completely absolve an employer of all safety responsibilities. For example, you’re still obligated to provide hazard information under WHMIS laws. And, as we’ll see below, you can’t contract away your criminal liability risks under C-45 to the prime contractor.
The 5 Construction-Only Jurisdictions: Five provinces—MB, NS, PE, QC and YT— allow employers to appoint a “prime contractor” (in MB), “principal contractor” (in QC) or “constructor” (in NS, PE and YT) to control the work and assume responsibility for compliance with OHS laws. The catch: They can do this only for “construction” projects. Consequently, legal authority to delegate depends on whether the work falls within the legal definition of “construction.” The definition of “construction” varies from province to province. But in all cases, if the work isn’t considered construction, you’re back to Wyssen and the employer who owns the site remains liable for safety.
The 6 Hybrid Jurisdictions: In five provinces and territories—NL, NT, NU, ON and SK—and the federal jurisdiction, liability is shared by both the employer and the contractor. Explanation: Employers may designate the contractor as “principal contractor” (in NL, NT and NU), or “contractor” (in SK, federal) with control over the work and responsibility for compliance with the OHS laws. In ON, employers can make a “constructor” responsible for safety at a construction project. The kicker: The employer still has certain safety-related obligations and can’t contract out of them. The employer, in other words, is stuck with these residual duties no matter what the contract says.
Example: As noted above, Section 125 of the Canada Labour Code requires employers to take steps to protect “every person granted access to the work place” including workers of contractors. Such steps include:
Even if the contractor controls the work and assumes responsibility for compliance, the employer remains subject to these duties. Needless to say, this system of concurrent responsibility raises all kinds of confusing and frustrating practical problems.
Example: In Ontario, employers may assign primary responsibility for OHS compliance to “constructors” of construction projects. However, “project owners,” that is, owners of a workplace where “construction” is taking place, must furnish the constructor a list of all hazardous substances at the site [OHS Act, Sec. 30].
Contractors & Criminal Liability under C-45
So far, we’ve only talked about responsibility for compliance with the OHS laws. But there’s another important issue that arises when an employer hires a contractor to perform work at its workplace: If criminal negligence is committed in connection with the work, which party would be liable under Bill C-45?
What C-45 Says
C-45 adds a new section to the Criminal Code (Section 217.1) requiring “everyone who undertakes, or has the authority, to direct how another person does work ” to “take reasonable steps” to protect the person doing the work or another person against death or bodily injury arising out of the work.
Section 219(1)(b) of the Criminal Code says that persons are guilty of criminal negligence if they do anything the law forbids or omit to do anything the law requires and the act or omission shows “wanton or reckless disregard” for life and safety. So, failing to take reasonable steps to protect under Section 217.1 could be criminal negligence under Section 219(1)(b) if it’s based on “wanton or reckless disregard.”
Impact on Contracting
C45 covers two kinds of “person”: An individual and a company. A company can be liable if one of its “representatives” commits criminal negligence. A company’s representative includes not only its officers, directors and employees but also its outside agents and contractors.
Result: If a contractor commits criminal negligence, the company that hired it can be held liable.
Contracting Out of Liability under C-45
How can companies manage this risk? The obvious answer is to delegate responsibility for complying with C-45 to the prime contractor. This option would seem especially attractive in AB, BC and NB where employers can make prime contractor arrangements for construction and non-construction work. It would also seemingly work in “constructiononly” provinces for construction projects. But guess what? You can’t delegate responsibility to comply with C-45 to a prime contractor no matter what province you’re in or what the work involves. Criminal laws aren’t the same as OHS obligations. You can’t contract out of them.
Conclusion
All employers that use contractors to perform work at their sites have some degree of liability exposure. So, as a safety coordinator, it’s essential that you figure out ways to manage these risks. Here we show you how.
SHOW YOUR LAWYER
R. v. Wyssen (1992) 10 O.R. (3d) 193, Ont. Ct. Apps
R. v. Potash Corporation of Sask., (Aug. 11, 1998), Turpel Prov. J. (Sask. Prov. Ct.)
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