A city has won a suspension of a Ministry of Labour
inspector's decision that the city was a
"constructor" under the Ontario Occupational Health
and Safety Act on a watermain-improvement project.
The city was the "owner" of the project. It had
retained, for the project, a construction company which had assumed
the role of constructor under the OHSA and was carrying out the
duties of constructor on the project.
The city asked the Ontario Labour Relations Board to suspend the
operation of the inspector's Order that the city was the
constructor. The MOL opposed the suspension request, alleging
that the city had retained a great deal of control over the
project, including the timing of some of the work, and had control
over the construction company and the police service (which
performed some traffic control functions in connection with the
project). The MOL argued that because the city had such
"control", the city should also have the duties of
constructor under the OHSA.
The OLRB suspended the MOL inspector's Order pending the
outcome of the city's appeal challenging the inspector's
decision. The OLRB decided that the safety of workers on the
project would be maintained because the construction firm was an
"experienced and responsible entity" which was carrying
out the duties of constructor on the project. While the city
may have requested and paid for the traffic control services
provided by the police, it was at the construction company's
request that the city contacted the police and arranged for traffic
control. The construction company "more closely
resembled" the constructor on the project. Compelling
the city to carry out the obligations of the constructor would
cause it prejudice that it ought not to bear if it was not in fact
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