Section 118 of the Workers Compensation Act (the Act)
requires a "prime contractor" to coordinate the safety
activities of workers, employers and other persons at any
"multiple-employer workplace" and to establish and
maintain a system to ensure compliance with the Act and the
regulations in terms of occupational health and safety at the
multiple-employer workplace. Under the Act, "the" owner
of a multiple-employer workplace is the default prime contractor
unless some other party enters into a written agreement with
"the" owner to become prime contractor. Identification of
"the" owner of a multiple-employer workplace, then,
appears critical to the identification of "the" prime
contractor. Unfortunately, the legislative implementation of the
Act's policy with respect to multiple-employer workplaces lacks
legal certainty when it comes to the identification of prime
The problem is that neither the Act nor its regulations identify
a single "owner." Part 3 of the Act provides a definition
of "owner" that "includes" (among other things)
a tenant, lessee, licensee or occupier of a workplace. Since the
definition is inclusive (that is, it does not exclude other
potential owners that are not specifically identified in the
definition), a fee simple owner of a workplace is undoubtedly also
an "owner" for purposes of Part 3 of the Act.
So, as WorkSafeBC acknowledges in its policies and guidelines,
any given workplace can have multiple owners. This is particularly
so with forestry sector workplaces where, contemporaneously, the
Crown will hold underlying title, the tenure holder and the holder
of any market-logging (quota rental) agreement are
"licensees," and a stump-to-dump contractor is
potentially an "occupier." Each of these actors fall
within the definition of "owner" under the Act, but the
Act does not identify "the" owner for purposes of prime
contractor liability under the Act.
While the Act and regulations made thereunder clearly
contemplate that only a single owner will exist at any given
multiple-employer workplace for purposes of prime contractor
liability, there is no legislative guidance to distinguish
"the" owner from all the other potential owners. A tenure
holder cannot know with certainty whether it is lawfully
"the" owner of a multiple-employer workplace and,
therefore, the default "prime contractor" and a
"stump-to-dump" logging contractor cannot know with
certainty that it is not "the" owner and, therefore, not
the default prime-contractor.
WorkSafeBC also has no obligation to accept a particular state
of affairs that various actors may have agreed upon with respect to
prime contractor liability for a multiple-employer workplace.
Parties to a market logging agreement may acknowledge in their
agreement that the purchaser (rather than the holder of the Crown
tenure) is "the owner" of any multiple-employer workplace
that may exist in relation to their agreement since the purchaser
under a market logging arrangement is, at law, a licensee as the
holder of a sublicense. The purchaser, as "the owner,"
may then enter a written agreement with its logging contractor
whereby the logging contractor assumes the role of "prime
contractor" from the purchaser. While this type of arrangement
commonly arises and makes sense, there is nothing in the
legislation that compels WorkSafeBC to lawfully recognize the
arrangement if, in WorkSafeBC's view, the holder of the
underlying tenure was still "the owner" of any
multiple-employer workplace regardless of what the parties had
otherwise agreed upon.
The problem of multiple owners in relation to prime contractor
liability has existed since 1999 when Bill 14 was brought into
force and Part 3 of the Act came into existence. It is nothing new.
Yet, neither government nor WorkSafeBC appear motivated to bring in
legislative certainty as to who, exactly, is "the" owner
for purposes of prime contractor liability under the Act. One might
think that clear rules with respect to who is responsible for
coordinating occupational health and safety at multiple-employer
workplaces is both good for safety and good for business. But,
instead, we are left to rely upon policy statements and other
guidance from WorkSafeBC that are not lawfully binding and,
therefore, do not provide much in terms of legal certainty.
Originally published by BC Forest Professional
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