Owners of commercial or residential property that are engaged in a significant construction project may unwittingly assume health and safety obligations. A recent example of this occurred in British Columbia, where former Premier Gordon Campbell was found by the BC Workers Compensation Board to be a “prime contractor” following the death of a roofer that was replacing the roof on a family cottage. This finding meant that he was responsible for the health and safety of all of the workers on the job site. As a result of the finding, he was also exposed to penalty sanctions that could be levied under the Workers Compensation Act.
Prime Contractor (described as “Constructor” in some provinces) liability for occupational health and safety issues may fall on an owner who fails to specifically designate a party to coordinate health and safety activities on a construction project. The obligations are onerous, and normally require health and safety expertise as well as a hands-on involvement in the construction activities. Coordination of health and safety activities of different sub contractors is of particular importance.
Provinces such as British Columbia and Alberta specifically contemplate that an owner may designate one of its contractors as the prime contractor so long as the designation is made in writing. The problem for Mr. Campbell was that while there was a general contractor working on his cottage, it was not designated in writing as the prime contractor. As a result, the liability defaulted to him as owner of the property. Other provinces such as Ontario similarly may look to the owner of a construction project as the party responsible for health and safety on the project. In most cases, the construction contract will be an important factor to determine the party responsible for health and safety matters.
A recent case in the Yukon addressed this issue after the Government as the owner of a large road-building project was charged as “constructor” for the project. In similar wording to the legislation in Ontario, the Yukon Occupational Health and Safety Act provides that an owner may be a “constructor” (and so responsible for health and safety on a construction project) when it “undertakes all or part of a project by themselves or by more than one employee.” As the result of a blasting incident, fly rock was blasted from the road construction jobsite onto a nearby trailer court. The Government of Yukon was charged by the Director of Occupational Health and Safety as the constructor for the road building project despite a voluminous contract which reposed these obligations on the general contractor. The charge was upheld by the Yukon Territorial Court but reversed on appeal: see Director of Occupational Health and Safety v. Government of Yukon, William R. Cratty and P.S. Sidhu Trucking, 2012 YKSC 47. Mr. Justice Veale found that where the owner hires a contractor to undertake a project as its constructor, the owner does not undertake the project unless it explicitly takes back some of the responsibilities that it contracted out.
These examples illustrate the liability which may befall an owner of a residential or a commercial construction project if care is not taken to appoint an appropriate party to undertake occupational health and safety obligations. Once the appropriate party, normally the general contractor, is tasked to undertake these responsibilities, the construction contract must specifically spell out the appointment.