Prosecuting supervisors is hardly a new practice. But now such prosecutions are occurring more frequently, even outside of Ontario, the traditional hotbed of supervisor fines.
How Supervisors Can Be Liable
The theory that all stakeholders have a responsibility to keep the workplace safe is the philosophical underpinning of Canadian OHS law. Given the central role played by supervisors in carrying out work, it’s hardly surprising that supervisor liability is a key element in the so called Internal Responsibility System.
In short, anybody who acts as a supervisor faces the risk of liability under OHS law.
Who’s a “Supervisor”?
Managing supervisor liability risks would be much simpler if we knew exactly what a supervisor is. Unfortunately, there’s no uniform definition in the OHS laws. In fact, in some parts of Canada, there’s no definition at all.
BC, Manitoba, Newfoundland, Ontario and Yukon define “supervisor” in their OHS laws. In each case, the definition is phrased in terms of function rather than title, i.e., it’s what the person does rather than what he’s called that defines him.
Broad Definition: But the definitions also vary in scope. Thus, Manitoba and Ontario broadly define supervisor as any person in charge of a workplace or authority over a worker. This definition is elastic enough to cover not just to individuals who meet the everyday conception of what we think of as a supervisor but to upper management, company presidents and owners as well as to grass roots workers who nominally rank below a supervisor but carry out supervisory functions.
In Ontario, there have been 4 key cases that have relied on this definition to rule that a person without a supervisory title still carried out the functions that made him a supervisor:
- “Hands on” president of a small construction company [R. v. Adomako,  O.J. No. 3050 (O.C.J.)];
- General Superintendent of Toronto Transit who headed department with 400 employees and was 3 formal levels above supervisory [Ontario (Ministry of Labour) v. Bartram, 2009 ONCJ 29 (CanLII), Jan. 29, 2009];
- Lead hand of crew cutting grass in a public park [R. v. Walters, 2004 CanLII 34511 (ON S.C.), Dec. 6, 2004]; and
- Working foreman [Ontario (Ministry of Labour) v. Lockyer, 2009 ONCJ 73 (CanLII), Jan. 20, 2009].
Narrow Definition: BC, by contrast, defines supervisor as a person that “instructs, directs and controls workers in the performance of their duties.” A BC tribunal has held that this definition didn’t cover a construction manager vis-à-vis a subcontractor’s workers because he didn’t directly supervise those workers [Review No. R0073894, 2007].
Although it’s not as expansive as the Ontario/Manitoba “person in charge” conception, the BC definition istill elastic enough to reach individuals we wouldn’t normally think of as supervisors.
No Definition: The other jurisdictions, including Alberta and Nova Scotia, don’t define what a supervisor is. As a result, individuals can’t be charged “as supervisors” in these places. However, they can and are charged as either an “employer” or a “worker.” Examples:
- Company superintendent, job foreman and safety supervisor all charged as “employers” in death of 16-year-old worker [R. v. Peter Kiewit Sons. Co.,  CanLII 5965 (ABQB), March 8, 1991];
- Masonry foreman charged as “employee” in death of crew member [R. v. Eagles, 2009 NSPC 49 (CanLII) Nov. 6, 2009]; and
- Safety coordinator charged and convicted as “employee” in death of experienced ironworker [R. v. Dearing, 2009].
The Bottom Line
The potential for supervisor liability exists no matter what part of Canada you’re in. And because it’s rooted in the functions individuals performs rather than the title they go by, supervisor liability could cover a broad range of people in your organization.