In Quebec, the Act Respecting Occupational Health and
Safety (the Act) binds a principal contractor to
the same extent as an employer. Principal contractors must observe
the obligations imposed on employers by the Act and its
regulations, including obligations regarding the protection of the
health, safety and physical well-being of construction workers. The
''principal contractor'' is defined by the Act as
being the owner or any other person who, on a construction site, is
responsible for the carrying out of all the work. Needless to say,
determining who is responsible for the carrying out of all the work
has repeatedly been the cause of litigious disputes.
On July 11, 2011, the Court of Appeal, in a judgment written by
Honourable Pierre J. Dalphond, specified the criteria to be
considered in order to identify the principal contractor of a
construction site. The judgment rendered in Commission de la santé et de la
sécurité du travailc.
Hydro-Québec dealt with penal charges brought by
the Commission de la santé et de la
sécurité du travail (CSST) against
Hydro-Québec for its alleged failure to fulfill its
obligations under the Act in connection with the deadly fall of a
worker on a construction site. In first instance, the Court of
Quebec had acquitted Hydro-Québec of the alleged offence
holding that the CSST did not prove beyond a reasonable doubt that
Hydro-Québec was the principal contractor. The Superior
Court had also dismissed the CSST's appeal.
Before the Court of Appeal, the CSST argued that the lower
courts erred in failing to recognize Hydro-Québec as the
principal contractor of the construction site in question.
According to the CSST, the principal contractor is identified
before the start of the construction work, and the documents
relating to the call for tenders specifically designated
Hydro-Québec as the principal contractor.
In its judgment, the Court of Appeal disagreed with the position
taken by the CSST. Building on the test set out by the
Commission des lésions professionnelles, Justice
Dalphond stated four elements that need to be considered when
identifying the principal contractor:
Identification of the construction site;
Determination of all the construction work which is to be
Characterization of the legal relationship between the owner
and the third party in order to determine whether the former has
entrusted the latter with the responsibility of carrying out all of
the construction work;
In the absence of such a legal relationship, the owner is
considered the principal contractor within the meaning of the
With respect to the last two elements, Justice Dalphond
explained that the nature of the relationship between the parties
may change throughout the course of the carrying out of the
construction work. Therefore, while it is true that there must be a
principal contractor before the start of the construction work -
and at any time thereafter - and while it is true that substantial
weight is attached to the contract entered into between the owner
and the third party retained before the start of the construction
work, in the context of a penal proceeding, we must identify who
was the principal contractor on the particular day that the alleged
offence took place.
In the present case, Hydro-Québec had entrusted a
contractor with the carrying out of all the work as part of a
general contract of availability. This contractor chose the method
of carrying out the work, hired the required workers and retained
the services of a subcontractor to assist it in the carrying out of
the construction work. No employee of Hydro-Québec
participated in the carrying out of the work nor in choosing the
method of carrying out such work.
The Court of Appeal therefore dismissed the CSST's appeal
holding that the actual principal contractor of the construction
site was the contractor entrusted by Hydro-Québec, and this
despite the fact that the documents relating to the call for
tenders had designated Hydro-Québec as the principal
contractor. In fact, in the context of a contractual relationship
lasting more than two years, the characterization of the nature of
the relationship intended by the parties ought to be made at the
time a specific order is placed for the construction site.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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