The Quebec Court of Appeal has upheld the acquittal of a principal contractor accused of an offence under section 237 of the Act respecting occupational health and safety, holding that it had fulfilled its obligations to oversee the progress and adequate performance of work on the construction site. The Court of Appeal concluded that the principal contractor was not obliged to provide constant direct supervision of all persons working on the site, as the size of the site made that unrealistic.1
The Respondent, Société de la Baie James, manages the "Eastman 1A" project (the Project), which involves some 1,200 workers, for Hydro-Québec. The Respondent had hired a subcontractor (the Employer) to move certain modular utility and housing units for workers taking part in the Project. In the course of these operations, one of the Employer's workers slid under a module that was in the process of being moved and the module collapsed on the worker, killing him. The accident resulted in the filing of a complaint by the Commission de la santé et de la sécurité du travail (CSST) under section 237 of the Act respecting occupational health and safety2 (AOHS), in which the Respondent was accused [translation] "in the capacity of principal contractor on a construction site (...) of acting in a manner that directly and seriously compromised the health, safety or physical well-being of a worker during the performance of work to put up modular dormitories (...)."
The Respondent was acquitted in first instance by the Court of Québec3 (the Court), which held that the CSST had not proven beyond a reasonable doubt that the Respondent had committed an act or omission which directly compromised a worker's safety, and that the level of care taken by the Respondent, while it could have been improved upon, had been reasonable. The Court found that the accident was attributable to the shortcomings of the Employer, notably in regard to the training and supervision of its workers, and to the recklessness of the worker who had died. The Court was of the view that even though, in certain cases, section 196 AOHS, which provides that the principal contractor is bound to the same extent as the employer to observe the obligations imposed on employers by the act and the regulations, had the effect of superimposing the obligations of the employer and the principal contractor, that principle should not be applied [translation] "in a blind and undifferentiated manner, as the circumstances peculiar to each case needed to be taken into account."4 The Court thus concluded that the Respondent had fulfilled its obligations as principal contractor to oversee the progress of the work and ensure its adequate performance and that it was not required to provide constant direct supervision of all persons working on the Project, whose size make such supervision unrealistic.
Accordingly, the Court refused to impose the obligations incumbent on the Employer under section 237 AOHS on the Respondent without qualification, since an interpretation along those lines could result in a party being held liable for an event over which it in fact had no control. The Court's judgment was affirmed on appeal to the Superior Court,5 and the CSST appealed the Superior Court's ruling.
The positions of the parties and the decision
The CSST contended that the Court of Québec had erred in finding that in accordance with sections 196 and 237 AOHS, the Respondent's obligations were not necessarily identical to the Employer's obligations given in particular the size of the construction site. More specifically, the CSST argued that the effect of sections 196 and 516 AOHS was such as to make the Employer's and the Respondent's obligations identical. Thus proof of failure by the Employer to comply with one of the obligations listed in section 51 (which proof had been made in this case) could, by operation of section 196 AOHS, be imputed to the Respondent and served to establish the objective element (actus reus) of an offence under section 237 AOHS. The CSST went on to argue that its position was bolstered by section 239 AOHS, which, along the lines of section 196, melded the principal contractor with the employer.
The Respondent countered that a number of the obligations listed in section 51 AOHS were obligations that fell to the Employer first and foremost, and that in general, workers on a construction site remained under the immediate supervision and control of their employer. The Respondent drew a distinction between the offences under sections 236 and 237 AOHS and submitted that while the mere failure of the employer or principal contractor to fulfill one of the obligations set out in section 51 AOHS might suffice to establish the objective element of an offence under section 236 AOHS, the same was not true of an offence under section 237 AOHS, which required proof of an act or omission attributable to the Respondent that directly and seriously compromised the health, safety or physical well-being of a worker.
The Court of Appeal rejected the CSST's arguments. The record showed that the accident had been caused by the shortcomings of the Employer in relation to training and supervision, and the recklessness of the worker who had had the accident. The Court of Appeal found that the Respondent had fulfilled its obligations as principal contractor, among other things by setting up safety and work surveillance measures carried out in connection with the Project. The Court of Appeal agreed with the Respondent that, assuming the CSST's position were correct, the only way the Respondent could have prevented such an accident would have been to supervise all the workers assigned to the Project on a permanent basis.
In dismissing the CSST's appeal, the Court of Appeal also accepted the Respondent's argument that the offences under sections 236 and 237 AOHS needed to be distinguished, thus rejecting the CSST's argument that proof of failure by the Employer to fulfill the requirements of section 51 AOHS was enough to establish the objective element of an offence under section 237 AOHS even without a worker's safety being directly and seriously compromised by an act or omission of the Respondent.
This decision by the Court of Appeal clarifies the thorny question of the obligations of a principal contractor as opposed to the obligations of an employer in occupational health and safety matters. Rather than applying section 196 AOHS in an undifferentiated manner, as the CSST was asking it to do, the Court of Appeal adopted an interpretation which reconciles the CSST's industrial accident prevention objectives with the reality of construction sites. The Court of Appeal opted to adjust the obligations incumbent on the Respondent in keeping with the circumstances of the case, in particular the size of the Project, so as to avoid imposing unrealistic requirements.
Another of the decision's merits is that it rejects the interpretation whereby proof of an employer's failure to meet one of the obligations listed in section 51 AOHS has the effect of establishing, ipso facto, the objective element of an offence under section 237 AOHS, with the result that a distinction can continue to be made between the offences under sections 237 and 236 AOHS.
1 Commission de la santé et de la sécurité du travail c Société d'énergie de la Baie James, 2012 QCCA 1910, Morissette, Bich and Dufresne JJA.
2 RSQ, c S-2.1.
3 Commission de la santé et de la sécurité du travail c Société d'énergie de la Baie James, 2010 QCCQ 5985, Gervais J.
4 Id., para 144.
5 Commissionde la santé et de la sécurité du travail c Société d'énergie de la Baie James, 2011 QCCS 4819, St-Julien J.
6 Section 51 AOHS provides that "every employer must take the necessary measures to protect the health and ensure the safety and physical well-being of his worker." The section sets forth a series of more specific obligations which the employer has.
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