Canada: Health And Safety On Construction Sites: The Principal Contractor Can’t Be Everywhere, Quebec’s Appeal Court

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 facts

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.

Norton Rose Group

Norton Rose Group is a leading international legal practice. We offer a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

Knowing how our clients' businesses work and understanding what drives their industries is fundamental to us. Our lawyers share industry knowledge and sector expertise across borders, enabling us to support our clients anywhere in the world. We are strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.

We have more than 2900 lawyers operating from 43 offices in Abu Dhabi, Almaty, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Bogotá, Brisbane, Brussels, Calgary, Canberra, Cape Town, Caracas, Casablanca, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.

Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose Canada LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.

On January 1, 2012, Macleod Dixon joined Norton Rose Group adding strength and depth in Canada, Latin America and around the world. For more information please visit

Norton Rose will join forces with Fulbright & Jaworski L.L.P on June 1, 2013, creating Norton Rose Fulbright a global legal practice with significant depth of expertise across the USA, Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.