When Are Companies Liable as ‘Employers’ for Injuries to Another Company’s Workers?

Canadian OHS laws require “employers” to take measures to protect the health and safety of their workers. In a famous case, an Ontario court ruled that an “employer’s” duty under OHS laws applies not only to a company’s own employees but also to workers employed by others who are doing work under the company’s control. In other words, the court ruled that the definition of “employer” under OHS laws is based not on an employment relationship but control over work [R. v. Wyssen, [1992] O.J. No. 1917, Sept. 17, 1992]. The so-called “Wyssen” approach is followed throughout Canada. Consequently, companies have been found liable for injuries suffered by their own workers as well as the employees of contractors and subcontractors. Here are two cases where a company was found liable as an “employer” for failing to protect a worker employed by another company.

COMPANY = ‘EMPLOYER’ OF CONTRACTOR’S WORKER

FACTS A company hired a contractor to deliver a mixture of sand and salt to the company’s worksite. The contractor’s worker unloaded the mixture from his dump truck using a conveyor system belonging to and operated by the company. The company’s site foreman started the conveyor and then left to make a phone call. When the mixture stopped flowing, the worker took a sledgehammer and, as he’d seen company workers do, used it to bang on the dump box to loosen the mixture. A large portion hit the worker’s foot, knocking him onto the conveyor. He suffered serious injuries that resulted in the amputation of his legs below the knees. The company was convicted, as an employer, of failing to guard the conveyor and to provide instruction and supervision to the worker. It appealed, arguing that it wasn’t the worker’s employer under the OHS law. DECISION The Ontario Court of Appeals ruled that the company was the worker’s “employer.” EXPLANATION The court noted that there was no dispute that the company had contracted the worker’s services through his immediate employer, the contractor. But a company that hires the services of a person through another employer assumes responsibilities as an employer for that person while he’s working in a workplace under the company’s control, explained the court. So the company in this case became the worker’s employer while he was working in a workplace it controlled. The company also controlled the conveyor that injured the worker. And it admitted failing to install guards on the conveyor, which would have prevented the incident. In addition, the worker was never given any training by the company on how to use the conveyor or on safety in general, although he’d been told that the company would provide such training. Thus, the company’s conviction as the worker’s employer was appropriate, concluded the court. R. v. Pioneer Construction Inc., [2006] CanLII 15621 (ON C.A.), May 12, 2006

ENGINEERING FIRM  = ‘EMPLOYER’ OF SUBCONTRACTOR’S WORKERS

FACTS A subcontractor hired to do the concrete and formwork on a construction project hired an engineering firm to provide drawings, onsite inspection services while the formwork and reshoring was being done and authorizations to pour concrete based on the engineer’s professional opinion as to the completion of that work and its compliance with the drawings. While the concrete for the roof slab was being poured, a section fell. Four of the subcontractor’s workers also fell but weren’t seriously injured. The engineering firm was charged as an employer with failing to ensure the issuance of the appropriate professional engineer’s certificate for the formwork as required by BC OHS regulations. The engineering firm argued that it wasn’t an “employer” under the regulations. DECISION The BC Provincial Court convicted the engineering firm, ruling that it was an “employer.” EXPLANATION The court noted that the definition of “employer“ had to be interpreted broadly to achieve the OHS law’s purpose of protecting workers. In workplaces with multiple employers, the activities of one employer and its workers often impact the workers of other employers (in the common use of the term). For this reason, the responsibilities of employers, contractors and subcontractors under the OHS law overlap to ensure that all employers at the site are accountable to workers who may be affected by their activities, explained the court. Thus, more than one company can be responsible as an employer for workers on a worksite. Here, the engineering firm was ultimately responsible for authorizing the pouring of the roof slab. As such, it was the employer in the best position to ensure that the work complied with the law’s requirements. And the firm failed to do so. It didn’t inspect the formwork or verify that it complied with the drawings and supplemental instructions. R. v. Ted Newell Engineering Ltd., [2001] B.C.J. No. 2046, Oct. 3, 2001