Constructors, including many owners who directly hire and
oversee contractors on their properties, must have strong and
meaningful safety programs in place. In a recent Ontario
court decision, the existence of such a program shielded the
contractor from liability.
In R v Bay
Grenville Properties, the Ministry of Labour charged several
corporations and individuals for violations of the
Occupational Health and Safety Act (Act) after a
workplace fatality on the construction site of a condominium
building. While a subcontractor was preparing a hoist of
materials, a piece of pipe rolled off the edge of a platform and
struck the injured worker in the head, many storeys below. Three
companies were charged, including the company responsible for
hoisting and the constructor. The hoisting company pleaded
guilty to a violation of the Act before trial.
The trial was concerned with the guilt of the other parties,
including the constructor, one of its subcontractors, and certain
individual employees. The constructor was charged with
several offences relating to alleged failures to ensure that its
subcontractors followed safety precautions, including overhead
protection and safe storage of construction materials.
Of particular importance to the Court's analysis was its
finding that a proper due diligence analysis for a constructor must
take into account the size and nature of a construction
project. In this case, the $96 million dollar project, with
often 20 or 30 subcontractors working, was of significant enough
size to alter the analysis. Because of the size of the
project, the Court was much more concerned with the general safety
measures and high-level supervision of health and safety matters,
which it found were adequate.
The Court spoke highly of the safety-consciousness of the
constructor, noting in particular provisions in its contracts
requiring compliance with health and safety law, the creation and
distribution of safety manuals to workers on the site, and that the
constructor required subcontractor site superintendents to make
declarations stating that they had received and read the safety
In addition, the Court indicated that at the time of the
accident the employees of the hoisting company had departed in a
"bizarre" fashion from standard practice, during what was
a fairly commonplace operation. The Court suggested that on a
project of this scale, it was unnecessary and impractical for a
supervisor to direct such tasks, and that the constructor was
entitled to rely on others to perform their jobs safely.
The Court found that the Crown's case was much stronger on
the charge that the constructor had not properly ensured signage
was affixed to warn workers about the potential hazard from
falling objects in the area in which the worker was killed.
After all, there were no signs in place when the inspector visited
the site following the accident.
The constructor pointed to its safety program, which mandated
signage for similar hazards. The Court also examined previous
inspectors' reports, which never mentioned signage as being an
issue on the site. Finally, the possibility that the signs
had come down during the confusion and chaos following the accident
led the Court to find that there was a reasonable doubt.
For some other charges, once the subcontractor had been
acquitted of the offence the Court found it impossible to impute
liability to the constructor. Those charges, too, were
The Court acquitted the defendants of all charges.
Constructors are subject to broad and significant
responsibilities under the Act. The decision underscores the
importance of having a well-constructed, consistent, and effective
safety program. Such a strong program may be invaluable for
defending against charges for violations committed by
subcontractors without the constructor's knowledge.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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