The Alberta Court of Appeal has recently confirmed that an
owner/developer of a condominium conversion project was not liable
for damages in a civil action commenced by a worker.
The action arose from an incident in March 1994 when the worker
was working on a rooftop of a condominium development worksite
owned by the respondent. He slipped on an icy roof and fell through
an unmarked piece of plywood that was covering a hole cut for a
skylight. The worker sustained very serious injuries as a result
and commenced an action against several parties including the
developer. The other defendants were found to fall within the
protection of the Workers' Compensation Act and so the
action proceeded to trial solely against the developer. The trial
decision was reviewed in our October 6, 2014 post.
On appeal, the Court confirmed the Trial Judge's finding
that the developer did not become liable in negligence by
application of the requirements of the Occupational Health and
Safety Act. While the statute did inform the common law,
it did not create civil liability.
The focus of the appeal was on whether the developer should be
vicariously liable for the acts of the contractor it had retained
to provide supervisory management services. The contractor
was protected from suit under the Workers' Compensation
Act. The worker raised several different arguments to
attempt to impose vicarious liability against the developer;
however, the Court of Appeal rejected each of them. One of
the concerns expressed by the Court of Appeal in relation to the
worker's argument was that his reasoning would make the
developer "liable almost to the level of an insurer" for
all significant physical work being performed by a contractor or
subcontractor on a construction site. As such, this decision
will be welcomed by developers in Alberta.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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